88338 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Proposed Rules 

this rulemaking. All comments received 

will be posted without change to 

https://www.regulations.gov, including 

any personal information provided. 

Docket: To access the docket and read 

background documents or comments 

received, go to: https://

www.regulations.gov. Background 

documents and comments received may 

also be viewed at the U.S. Department 

of Transportation, 1200 New Jersey Ave. 

SE, Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

Washington, DC 20590–0001, between 9 

a.m. and 5 p.m. EST, Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

program matters, contact Valerie Beck, 

Office of Transit Safety and Oversight, 

FTA, telephone (202) 366–9178 or email 

FTAFitnessforDuty@dot.gov. For legal 

matters, contact Emily Jessup, Office of 

the Chief Counsel, telephone (202) 366– 

8907 or email emily.jessup@dot.gov. 

Office hours are from 7:30 a.m. to 4 

p.m., Monday through Friday, except 

Federal holidays. 

SUPPLEMENTARY INFORMATION: In a letter 

submitted to the docket dated November 

29, 2023, the American Public 

Transportation Association (APTA) 

requested a 30-day extension of the 

comment period for the advance notice 

of proposed rulemaking (ANPRM) 

published in the Federal Register on 

October 30, 2023 (88 FR 74107). 

As justification for this extension, 

APTA believed that it could synthesize 

consensus comments from the industry 

by the December 29, 2023, deadline, but 

it will be nearly impossible due to two 

Federal holidays between the time the 

NPRM was published and comments are 

due, and the fact that that many offices, 

including APTA’s, will be closed 

between Christmas and New Year’s Day. 

APTA also notes that it held a webinar 

for safety coordinators to collect 

comments and plans to hold another 

one in later December to synthesize 

comments. APTA also stated that 

intends to hold a meeting for transit 

CEOs to collect their thoughts on an 

initial draft response in late December 

or early January. APTA believes an 

extension of time would ensure that 

APTA and its members have the 

necessary time to survey, draft, and vet 

consensus comments and to produce a 

more complete response to the NPRM. 

Given the importance of public 

transportation safety and the desire for 

a robust dialogue on the issues 

surrounding transit worker fatigue, and 

the likelihood that other commenters 

may have similar concerns, FTA 

believes an extension of time is justified 

and is extending the comment period 

until January 29, 2024. 

FTA is not republishing the questions 

in this document. Instead, please refer 

to the ANPRM (88 FR 74107). To ensure 

that comments are filed correctly, please 

follow the instructions in the ADDRESSES

section above and include the docket 

number provided [FTA–2023–0018] in 

your comments. 

Veronica Vanterpool, 

Deputy Administrator. 

[FR Doc. 2023–28154 Filed 12–20–23; 8:45 am] 

BILLING CODE 4910–57–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2023–0220; 

FF09E21000 FXES1111090FEDR 245] 

RIN 1018–BG92 

Endangered and Threatened Wildlife 

and Plants; Threatened Species Status 

for Coal Darter With Section 4(d) Rule 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the coal darter (Percina brevicauda), 

a small, benthic freshwater fish native to 

the Mobile River Basin in Alabama, as 

a threatened species under the 

Endangered Species Act of 1973, as 

amended (Act). This determination also 

serves as our 12-month finding on a 

petition to list the coal darter. After a 

review of the best available scientific 

and commercial information, we find 

that listing the species is warranted. 

Accordingly, we propose to list the coal 

darter as a threatened species with a 

rule issued under section 4(d) of the Act 

(‘‘4(d) rule’’) to provide for the 

conservation of the species. If we 

finalize this rule as proposed, it would 

add this species to the List of 

Endangered and Threatened Wildlife 

and extend the Act’s protections to the 

species. 

DATES: We will accept comments 

received or postmarked on or before 

February 20, 2024. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

eastern time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by February 5, 2024. 

ADDRESSES:

Written comments: You may submit 

comments by one of the following 

methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2023–0220, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R4–ES–2023–0220, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

Supporting materials, such as the 

species status assessment report, are 

available on the Service’s website at 

https://www.fws.gov/office/alabamaecological-services, at https://

ecos.fws.gov/ecp/species/9959, and at 

https://www.regulations.gov under 

Docket No. FWS–R4–ES–2023–0220. 

FOR FURTHER INFORMATION CONTACT: 

William Pearson, Field Supervisor, U.S. 

Fish and Wildlife Service, Alabama 

Ecological Services Field Office, 1208 

Main Street, Daphne, AL 36526; 

telephone 251–441–5181. Individuals in 

the United States who are deaf, 

deafblind, hard of hearing, or have a 

speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. Please see 

Docket No. FWS–R4–ES–2023–0220 on 

https://www.regulations.gov for a 

document that summarizes this 

proposed rule. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act (16 U.S.C. 1531 et seq.), a 

species warrants listing if it meets the 

definition of an endangered species (in 

danger of extinction throughout all or a 

significant portion of its range) or a 


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threatened species (likely to become 

endangered within the foreseeable 

future throughout all or a significant 

portion of its range). If we determine 

that a species warrants listing, we must 

list the species promptly and designate 

the species’ critical habitat to the 

maximum extent prudent and 

determinable. We have determined that 

the coal darter meets the Act’s 

definition of a threatened species; 

therefore, we are proposing to list it as 

such. Listing a species as a threatened 

species can be completed only by 

issuing a rule through the 

Administrative Procedure Act 

rulemaking process (5 U.S.C. 551 et 

seq.). 

What this document does. We 

propose to list the coal darter as a 

threatened species with a rule issued 

under section 4(d) of the Act. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of any of five factors: (A) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that the coal darter 

meets the definition of a threatened 

species due to habitat loss or 

degradation from the following 

activities or conditions: hydrologic 

alteration by impoundments, including 

dams and other barriers; agriculture 

(poultry farming); urban development or 

change in land cover, including 

increased density of residential and 

commercial infrastructure; resource 

extraction, including mining and 

silviculture operations that do not 

follow State-approved best management 

practices (BMPs); diminished water 

quality from point and nonpoint source 

chemical contamination and 

sedimentation (Factor A); and climate 

change (Factor E). 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other governmental 

agencies, Native American Tribes, the 

scientific community, industry, or any 

other interested parties concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Biological or ecological 

requirements of the species, including 

habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns and the 

locations of any additional populations 

of this species; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

(2) Threats and conservation actions 

affecting the species, including: 

(a) Factors that may be affecting the 

continued existence of the species, 

which may include habitat modification 

or destruction, overutilization, disease, 

predation, the inadequacy of existing 

regulatory mechanisms, or other natural 

or manmade factors; 

(b) Biological, commercial trade, or 

other relevant data concerning any 

threats (or lack thereof) to this species; 

and 

(c) Existing regulations or 

conservation actions that may be 

addressing threats to this species. 

(3) Additional information concerning 

the historical and current status of this 

species. 

(4) Information on regulations that 

may be necessary and advisable to 

provide for the conservation of the coal 

darter and that we can consider in 

developing a 4(d) rule for the species. In 

particular, we seek information 

concerning the extent to which we 

should include any of the Act’s section 

9 prohibitions in the 4(d) rule or 

whether we should consider any 

additional exceptions from the 

prohibitions in the 4(d) rule. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, do not provide 

substantial information necessary to 

support a determination. Section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or a threatened 

species must be made solely on the 

basis of the best scientific and 

commercial data available. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

Our final determination may differ 

from this proposal because we will 

consider all comments we receive 

during the comment period as well as 

any information that may become 

available after this proposal. Based on 

the new information we receive (and, if 

relevant, any comments on that new 

information), we may conclude that the 

species is endangered instead of 

threatened, or we may conclude that the 

species does not warrant listing as either 

an endangered species or a threatened 

species. In addition, we may change the 

parameters of the prohibitions or the 

exceptions to those prohibitions in the 

4(d) rule if we conclude it is appropriate 

in light of comments and new 

information received. For example, we 

may expand the prohibitions to include 

prohibiting additional activities if we 

conclude that those additional activities 

are not compatible with conservation of 

the species. Conversely, we may 

establish additional exceptions to the 

prohibitions in the final rule if we 

conclude that the activities would 

facilitate or are compatible with the 

conservation and recovery of the 

species. In our final rule, we will clearly 

explain our rationale and the basis for 

our final decision, including why we 

made changes, if any, that differ from 

this proposal. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 


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at least 15 days before the hearing. We 

may hold the public hearing in person 

or virtually via webinar. We will 

announce any public hearing on our 

website, in addition to the Federal 

Register. The use of virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

Previous Federal Actions 

On April 20, 2010, we received a 

petition from the Center for Biological 

Diversity (CBD), Alabama Rivers 

Alliance, Clinch Coalition, Dogwood 

Alliance, Gulf Restoration Network, 

Tennessee Forests Council, and West 

Virginia Highlands Conservancy to list 

404 aquatic, riparian, and wetland 

species, including the coal darter, as 

endangered or threatened species under 

the Act. In response to the petition, we 

published a partial 90-day finding on 

September 27, 2011 (76 FR 59836), in 

which we announced our finding that 

the petition contained substantial 

information indicating that listing may 

be warranted for numerous species, 

including the coal darter. 

Peer Review 

A species status assessment (SSA) 

team prepared an SSA report for the 

coal darter. The SSA team was 

composed of Service biologists, in 

consultation with other species experts. 

The SSA report represents a 

compilation of the best scientific and 

commercial data available concerning 

the status of the species, including the 

impacts of past, present, and future 

factors (both negative and beneficial) 

affecting the species. 

In accordance with our joint policy on 

peer review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review in listing actions under the Act, 

we solicited independent scientific 

review of the information contained in 

the coal darter SSA report. We sent the 

SSA report to five independent peer 

reviewers and received one response. 

Results of this structured peer review 

process can be found at https://

www.regulations.gov. In preparing this 

proposed rule, we incorporated the 

results of these reviews, as appropriate, 

into the SSA report, which is the 

foundation for this proposed rule. 

Summary of Peer Reviewer Comments 

As discussed in Peer Review, above, 

we received comments from one peer 

reviewer on the draft SSA report. We 

reviewed the comment for substantive 

issues and new information regarding 

the information contained in the SSA 

report. The peer reviewer generally 

provided constructive suggestions and 

was broadly supportive. No substantive 

changes to our analysis and conclusions 

within the SSA report were deemed 

necessary, and peer reviewer comments 

are addressed in version 1.1 of the SSA 

report. 

I. Proposed Listing Determination 

Background 

A thorough review of the taxonomy, 

life history, and ecology of the coal 

darter is presented in the SSA report 

(version 1.1; Service 2023, pp. 11–15). 

The coal darter (Percina brevicauda) 

is a small, benthic freshwater fish native 

to the Mobile River Basin in Alabama. 

The species occurs in small to mediumsized rivers and the larger tributaries of 

those rivers with moderate to swift 

flowing water. It has been observed in 

riffle and run habitat, as well as in glide 

and pool habitat with stable sand, 

gravel, cobble, and bedrock substrates 

with low levels of siltation. The coal 

darter is a member of the genus Percina 

in the family Percidae (perches), and 

was originally described as the channel 

darter, first as Etheostoma copelandi 

(Gilbert 1891) and subsequently, as 

Percina copelandi (Moore 1957) when 

the channel darter was reclassified into 

the genus Percina. In 1994, the coal 

darter was described as a unique 

species, named Percina brevicauda, and 

placed with two other species 

recognized within the subgenus 

Cottogaster (the channel darter (Percina 

copelandi) and the pearl darter (Percina 

aurora)) (Suttkus and Bart 1994). 

Genetic analyses provided strong 

support of Cottogaster being a 

monophyletic clade, with these three 

species being sister clades. 

The coal darter is a small, elongated, 

slightly compressed freshwater fish 

reaching up to 50 millimeters (mm) 

(1.96 inches (in)) in total length with 

smaller fins compared to other 

Cottogaster members. It has dark lateral 

blotches and a continuous lateral stripe 

pattern on the body. Nuptial males are 

heavily pigmented, including on the 

ventral surface of the head and body, 

giving them a dusky appearance, which 

is the reason for the common name, coal 

darter. They are diurnal feeders and 

consume aquatic invertebrates (insects, 

crustaceans, worms). Little is known 

about the specific life-history 

characteristics of the coal darter. Most of 

the life-history knowledge for the 

species is inferred from information 

known for the channel darter and pearl 

darter. 

The coal darter is endemic to the 

eastern and central part of the Mobile 

River Basin in the State of Alabama. The 

species primarily occupies habitat above 

the Fall Line within the Piedmont, 

Ridge and Valley, and Southwestern 

Appalachians level III ecoregions. 

Additionally, there are several historical 

records below the Fall Line in the 

Cahaba River and Black Warrior River 

that are in the Southeastern Plains 

ecoregion. 

Presently, the species has a disjunct 

distribution, with populations in the 

Cahaba River, the Locust Fork of the 

Black Warrior River, and two tributaries 

in the lower Coosa River (Weogufka 

Creek and Hatchet Creek). Within the 

Locust Fork watershed, occurrences are 

mostly in the Locust Fork mainstem, but 

there are also occurrences in Turkey 

Creek, the Little Warrior River, and 

Blackburn Fork. In the Cahaba River 

system, the coal darter is predominantly 

found in the mainstem of the Cahaba 

River with occurrences in Shades Creek 

and the Little Cahaba River. 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and the implementing regulations in 

title 50 of the Code of Federal 

Regulations set forth the procedures for 

determining whether a species is an 

endangered species or a threatened 

species, issuing protective regulations 

for threatened species, and designating 

critical habitat for endangered and 

threatened species. In 2019, jointly with 

the National Marine Fisheries Service, 

the Service issued a final rule that 

revised the regulations in 50 CFR part 

424 regarding how we add, remove, and 

reclassify endangered and threatened 

species and the criteria for designating 

listed species’ critical habitat (84 FR 

45020; August 27, 2019). On the same 

day, the Service also issued final 

regulations that, for species listed as 

threatened species after September 26, 

2019, eliminated the Service’s general 

protective regulations automatically 

applying to threatened species the 

prohibitions that section 9 of the Act 

applies to endangered species (84 FR 

44753; August 27, 2019). Our analysis 

for this decision applied the regulations 

that are currently in effect, which 

include the 2019 revisions. However, 

we proposed further revisions to these 

regulations on June 22, 2023 (88 FR 

40764). In case those revisions are 

finalized before we make a final status 

determination for this species, we have 

also undertaken an analysis of whether 

the decision would be different if we 

were to apply those proposed revisions. 

We concluded that the decision would 

have been the same if we had applied 

the proposed 2023 regulations. The 


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analyses under both the regulations 

currently in effect and the regulations 

after incorporating the June 22, 2023, 

proposed revisions are included in our 

decision file. 

The Act defines an ‘‘endangered 

species’’ as a species that is in danger 

of extinction throughout all or a 

significant portion of its range, and a 

‘‘threatened species’’ as a species that is 

likely to become an endangered species 

within the foreseeable future throughout 

all or a significant portion of its range. 

The Act requires that we determine 

whether any species is an endangered 

species or a threatened species because 

of any of the following factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

species’ expected response and the 

effects of the threats—in light of those 

actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the Act’s definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

‘‘foreseeable future’’ extends only so far 

into the future as we can reasonably 

determine that both the future threats 

and the species’ responses to those 

threats are likely. In other words, the 

foreseeable future is the period of time 

in which we can make reliable 

predictions. ‘‘Reliable’’ does not mean 

‘‘certain’’; it means sufficient to provide 

a reasonable degree of confidence in the 

prediction. Thus, a prediction is reliable 

if it is reasonable to depend on it when 

making decisions. 

It is not always possible or necessary 

to define the foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of the species, 

including an assessment of the potential 

threats to the species. The SSA report 

does not represent our decision on 

whether the species should be proposed 

for listing as an endangered or 

threatened species under the Act. 

However, it does provide the scientific 

basis that informs our regulatory 

decisions, which involve the further 

application of standards within the Act 

and its implementing regulations and 

policies. 

To assess the coal darter’s viability, 

we used the three conservation biology 

principles of resiliency, redundancy, 

and representation (Shaffer and Stein 

2000, pp. 306–310). Briefly, resiliency is 

the ability of the species to withstand 

environmental and demographic 

stochasticity (for example, wet or dry, 

warm or cold years); redundancy is the 

ability of the species to withstand 

catastrophic events (for example, 

droughts, large pollution events); and 

representation is the ability of the 

species to adapt to both near-term and 

long-term changes in its physical and 

biological environment (for example, 

climate conditions, pathogens). In 

general, species viability will increase 

with increases in resiliency, 

redundancy, and representation (Smith 

et al. 2018, p. 306). Using these 

principles, we identified the species’ 

ecological requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA involved making predictions 

about the species’ responses to positive 

and negative environmental and 

anthropogenic influences. Throughout 

all of these stages, we used the best 

available information to characterize 

viability as the ability of a species to 

sustain populations in the wild over 

time. We use this information to inform 

our regulatory decision. 

The following is a summary of the key 

results and conclusions from the SSA 

report; the full SSA report can be found 

at Docket No. FWS–R4–ES–2023–0220 

on https://www.regulations.gov and at 

https://ecos.fws.gov/ecp/species/9959. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the species and 

its resources, and the threats that 

influence the species’ current and future 

condition, in order to assess the species’ 

overall viability and the risks to that 

viability. 

Individual, Population, and Species 

Needs 

A thorough review of the coal darter’s 

resource needs is presented in chapter 


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3 of the SSA report (version 1.1; Service 

2023, pp. 17–18). 

For the coal darter to survive and 

reproduce, individuals need suitable 

habitat that supports essential life 

functions at all life stages (see table 1, 

below). Four elements appear to be 

essential to the survival and 

reproduction of individuals: sufficient 

water quality, flowing water, stable 

substrates, and habitat heterogeneity. 

For coal darter populations to be 

resilient, the needs of individuals 

require sufficient water quality, flowing 

water, stable substrates, and habitat 

heterogeneity to be met on a larger scale 

(see table 1, below). Stream reaches with 

suitable habitat must be large enough to 

support a sufficient reservoir of 

potential mates for coal darters to breed 

with and maintain sufficient genetic 

health while avoiding issues associated 

with small population sizes, such as 

genetic drift and inbreeding depression. 

Connectivity is also an important 

factor for populations because it 

facilitates genetic health for populations 

and enables movement of individuals to 

suitable habitats that can accommodate 

the life-history needs for the species 

(i.e., spawning, refuge, feeding). Natural 

flow regimes are an important resource 

need for coal darter populations, as 

flows may help trigger spawning and are 

a habitat requirement for all life stages. 

At the species level, the coal darter 

needs a sufficient number and 

distribution of healthy populations to 

withstand environmental stochasticity 

(resiliency) and catastrophes 

(redundancy), and to adapt to biological 

and physical changes in its environment 

(representation). For the species to be 

viable, there must be adequate 

redundancy (suitable number, 

distribution, and connectivity of 

populations to allow the species to 

withstand catastrophic events) and 

representation (genetic and 

environmental diversity to allow the 

species to adapt to changing 

environmental conditions). Redundancy 

improves with increasing numbers of 

resilient populations distributed across 

the species’ range, and connectivity 

(either natural or human-facilitated) 

allows connected populations to 

‘‘rescue’’ each other after catastrophes. 

Representation improves with the 

persistence of populations having 

greater genetic and ecological diversity 

across the species’ range, resulting in an 

increased ability to adapt to changing 

environmental conditions. Long-term 

viability will require resilient 

populations; for the coal darter, this will 

mean maintaining quality stream habitat 

(for example, sufficient water quality, 

natural flow regime, stable substrate, 

and adequate habitat heterogeneity) to 

support multiple populations across the 

species’ range (see table 1, below). 

TABLE 1—SUMMARY OF COAL DARTER INDIVIDUAL RESOURCE NEEDS BY LIFE STAGE

Life stage Resources needed 

Eggs ..................................... • Suitable gravel/cobble substrate for egg deposition. 

• Low amounts of silt and fine sediment. 

• Suitable water quality and quantity. 

Larvae .................................. • Connectivity to suitable habitat for dispersal. 

• Sufficient water flow for dispersal. 

Juveniles .............................. • Sufficient gravel/cobble/boulder substrate. 

• Aquatic invertebrate food source. 

• Sufficient water flow. 

• Presence of habitat heterogeneity (riffles, runs, pools). 

• Suitable water quality and quantity. 

Adults ................................... • Sufficient gravel/cobble substrate. 

• Sufficient structural habitat (rock, aquatic vegetation). 

• Aquatic invertebrate food source. 

• Sufficient water flow. 

• Presence of habitat heterogeneity (riffles, runs, pools). 

• Sufficient water quality and quantity. 

At the species level, the coal darter 

requires sufficient connectivity between 

populations to facilitate gene flow and 

ensure adaptive potential. Genetic 

diversity should be high enough that the 

species will be able to adapt to changing 

environmental factors through the 

process of natural selection. 

Additionally, the species needs to have 

sufficient connectivity between enough 

individuals to promote an effective 

population size that is high enough to 

maintain evolutionary potential and 

genetic adaptive capacity. To evaluate 

the current and future viability of the 

coal darter, we assessed a range of 

conditions to allow us to consider the 

species’ resiliency, representation, and 

redundancy. 

Threats 

A thorough review of the threats 

affecting the coal darter is presented in 

chapter 4 of the SSA report (version 1.1, 

Service 2023, pp. 23–31). 

The coal darter is influenced by 

stressors affecting water quality, water 

flow, stream connectivity, and genetic 

diversity. The main threat is habitat loss 

or degradation from the following 

activities or conditions: hydrologic 

alteration by impoundments, including 

dams and other barriers; agriculture 

(poultry farming); diminished water 

quality from point and nonpoint source 

chemical contamination and 

sedimentation; urban development or 

change in land cover, including 

increased density of residential and 

commercial infrastructure; resource 

extraction, including mining and 

silviculture operations that do not 

follow State-approved BMPs; and 

climate change (Service 2023, p. 23). 

Impoundments 

Impoundment of rivers is a primary 

threat to aquatic species in the 

Southeast (Service 2023, pp. 23–24). 

Dams modify habitat conditions and 

aquatic communities both upstream and 

downstream of an impoundment. 

Upstream of dams, habitat is flooded 

and in-channel conditions change from 

flowing to still water, with increased 

depth, decreased levels of dissolved 

oxygen, and increased sedimentation. 

Downstream of dams, flow regimes of 

the released tailwater vary with 

resulting fluctuations in water 

temperature and dissolved oxygen 

levels, the substrate is scoured, and 

downstream reaches are eroded. These 

negative tailwater effects on habitat can 

extend many kilometers downstream. 

Dams fragment habitat for the coal 

darter by blocking corridors for 


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migration and dispersal, resulting in 

population isolation and increased risk 

of extirpation and extinction. All known 

populations of the coal darter are 

separated from each other by large 

dams. The virtually complete loss of the 

Coosa population and approximately 50 

percent loss of the Black Warrior 

population are attributed to the 

construction of dams, reservoir creation, 

and channelization that occurred in 

these systems in the late 1800s to mid1900s (see table 2, below). 

Impoundments in the Black Warrior 

River system were created to transport 

goods between Mobile and Tuscaloosa, 

and ultimately Birmingham. 

Construction of these impoundments 

included removal and clearing of 

overhanging trees and vegetation, 

blasting of rock and shoal complexes, 

removal of submerged woody debris and 

logs, and modification or removal of 

sand and gravel bars (Mettee 2019, pp. 

10–22). Impoundments in the Coosa 

River Systems for hydroelectric power 

production were constructed by 

Alabama Power between the 1920s and 

1960s. These impoundments are still in 

place today and significantly reduced 

the amount of available habitat for coal 

darters in the Coosa and Black Warrior 

River systems (Table 2). 

TABLE 2—COMPARISON OF HISTORICALLY OCCUPIED RIVER LENGTHS AND CURRENTLY OCCUPIED RIVER LENGTHS OF

COAL DARTERS IN THREE MAJOR RIVER SYSTEMS

[Service 2023, p. 14] 

River systems Historically occupied Currently occupy 

Black Warrior ..................................................... At least 130 river miles (rmi)/209.2 river kilometers (rkm).65 rmi/104.7 rkm. 

Cahaba .............................................................. 133 rmi/214 rkm ............................................... 114.9 rmi/184.9 rkm. 

Coosa ................................................................ At least 92.2 rmi/148.4 rkm .............................. 9 rmi/14.5 rkm in Hatchet Creek, one site in 

Weogufka Creek. 

The Cahaba River, at 190 rmi/305.8 

rkm long, is often referred to as 

Alabama’s longest free-flowing stream. 

However, two barriers have impacted 

the flow of the river. The first is a lowhead dam, located at Highway 280 near 

Acton, Alabama, and built in 1891. It is 

15 feet tall and backs up water for 

withdrawal by Birmingham. This lowhead dam is significantly smaller than 

the dams on the Black Warrior River 

and Coosa River, and as such, the 

Highway 280 dam has not converted 

vast areas of habitat, meaning habitat for 

the coal darter is still present and the 

species is still able to occupy habitat 

both upstream and downstream of the 

dam. Although coal darters occur 

upstream and downstream of the 

Highway 280 dam, this dam represents 

a significant barrier to upstream 

movement of coal darters. Downstream 

dispersal could be possible when larvae 

enter the water column and are carried 

downstream during a process known as 

pelagic larval drift (PLD). Because 

individuals upstream of the dam are 

isolated from those downstream, the 

upstream subpopulation is at a higher 

risk of genetic drift and inbreeding 

depression. The second barrier, the 

Marvel Slab, was removed in 2004; it is 

discussed in more detail under 

Conservation Efforts and Regulatory 

Mechanisms, below. 

Water Quality 

In general, darters tend to be sensitive 

to poor water quality (Service 2023, pp. 

24–26). According to the Fishery Index 

Biotic Integrity (IBI) reports and related 

fish community survey work, coal 

darters are consistently labeled as a 

‘‘disturbance-sensitive’’ or an 

‘‘intolerant’’ (of habitat impairments) 

species. Based on its narrow 

distribution and habitat conditions 

(including water quality parameters) 

where coal darters are found, the coal 

darter needs clean, relatively clear, 

flowing water to survive and carry out 

its basic life-history functions; thus, 

water quality degradation is considered 

a threat to the species. Below, we 

discuss the causes of water quality 

degradation in more detail. 

Point and Nonpoint Source 

Pollution—Inputs of point source 

pollution (discharge from an identifiable 

source) and nonpoint source pollution 

(diffuse land surface runoff) across the 

coal darter’s range are numerous and 

widespread. Point source pollution 

originates from inadequately treated 

effluent from industrial plants, sanitary 

landfills, sewage treatment plants, 

active surface mining, drain fields from 

individual private homes, and others. 

Nonpoint source pollution may 

originate from agricultural activities, 

poultry and cattle feedlots, abandoned 

mine runoff, construction, silviculture 

operations that do not follow Stateapproved BMPs, failing septic tanks, 

and contaminated runoff from urban 

areas. These sources have the potential 

to contribute pollution, including 

sediments, heavy metals, fertilizers, 

pesticides (e.g., herbicides, insecticides, 

fungicides, and rodenticides), animal 

wastes, septic tank and gray water 

leakage, and oils and greases, to streams. 

Water quality declines resulting from 

this pollution cause nitrification, 

decreases in dissolved oxygen (DO) 

concentration, increases in acidity and 

conductivity, and introduction of 

toxicants. These alterations likely have 

direct (decreased survival and/or 

reproduction) and indirect (loss, 

degradation, and fragmentation of 

habitat) effects on coal darters. For the 

coal darter, submerged vegetation 

provides spawning habitat for adults, 

refugia from predators, and habitat for 

prey of all life stages. Aquatic vegetation 

also provides substrate stability for the 

species. Degraded water quality and 

high algal biomass that result from 

pollutant inputs cause loss of these 

critical submerged plant species (e.g., 

water willow (Justicia americana), river 

weed (Podostemum ceratophyllum)), 

which are vital habitat for the coal 

darter and its prey. 

Sedimentation—Sedimentation has 

been linked to changes in fish 

assemblages and community structure 

(Shepard et al. 1994; Onorato et al. 

2000, pp. 56–58). A wide range of 

current activities and land uses can lead 

to excessive sedimentation within 

streams, which has occurred throughout 

the coal darter’s range, especially in 

Hatchet Creek. Sources potentially 

include agricultural practices, 

construction activities, stormwater 

runoff, unpaved roads, silvicultural 

activities, utility crossings, and mining. 

Fine sediments are not only introduced 

into streams during present day 

activities, but historical land-use 

practices may have substantially altered 

hydrological and geomorphological 

processes such that sediments 

continued to be input into streams for 

several decades after those activities 

ceased. 

Increases in sedimentation from 

sources such as agriculture, silviculture 

operations that do not follow Stateapproved BMPs, mining, and 


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urbanization are of concern for the coal 

darter and can negatively affect the 

species by reducing growth rates, 

disease tolerance, and gill function; 

reducing spawning habitat, reproductive 

success, and egg (embryo), larva, and 

juvenile development; reducing food 

availability through reductions in prey; 

reducing foraging efficiency; and 

reducing shelter (Service 2023, pp. 25– 

26). 

Agriculture 

Agricultural practices such as 

traditional farming, feedlot operations, 

and associated land-use practices can 

contribute pollutants to rivers. These 

practices can also degrade habitat by 

encouraging the erosion of stream 

banks, which results in alterations to 

stream hydrology and geomorphology. 

Nutrients, bacteria, pesticides, and other 

organic compounds are generally found 

in higher concentrations in areas around 

agriculture than in forested areas. 

Contaminants associated with 

agriculture (fertilizers, pesticides, 

herbicides, and animal waste) can cause 

degradation of water quality and 

habitats through instream oxygen 

deficiencies, excess nutrification, and 

excessive algal growths, with a related 

alteration in fish community 

composition. In the Alabama 

Department of Environmental 

Management’s (ADEM’s) 2022 list of 

impaired waters, which was prepared in 

accordance with section 303(d) of the 

Clean Water Act (CWA; 33 U.S.C. 1251 

et seq.) and submitted to the 

Environmental Protection Agency 

(EPA), Hatchet Creek was designated as 

impaired due the presence of pathogens 

from animal feeding operations and 

pasture grazing, and Weogufka Creek 

was designated as impaired due to the 

presence of pathogens from pasture 

grazing (ADEM 2022, p. 300). 

Poultry farming, undertaken primarily 

in poultry houses, occurs within the 

range of the coal darter, especially in 

and around the Locust Fork watershed. 

Poultry houses have an estimated ability 

to produce approximately 100 tons of 

litter a year (assuming a 20,000-squarefoot poultry house stocked at one bird 

per square foot and six flocks produced 

per year, which is a probable 

underestimate of litter production per 

broiler house). Poultry litter is a mixture 

of chicken manure, feathers, spilled 

food, and bedding material that is used 

to fertilize pastureland or row crops that 

frequently occur adjacent to rivers and 

streams. 

Runoff from heavy rains carries excess 

nutrients from chicken manure into 

nearby streams as a result of surfacespreading of litter. Litter can also 

contain arsenic, which is formed from a 

chemical routinely used as a feed 

additive to prevent disease and 

stimulate growth, and it enters streams 

through runoff (Stolze et al. 2007, p. 

821). Other substances often found in 

poultry litter include fecal coliform, 

Salmonella, and other pathogens; 

pesticide residue; and other heavy 

metals (Bolan et al. 2010, pp. 676–683). 

In general, the inputs from poultry litter 

into rivers and streams reduce water 

quality for the coal darter, causing 

physiological stress. This is especially 

evident in Locust Fork in the species’ 

range (ADEM 1999, pp. 57–78, 147, 218; 

Deutsch et al. 1990, entire). 

Resource Extraction: Mining and Oil/ 

Gas 

Coal mining in Alabama began in the 

early 1800s. Currently, there are active 

and reclaimed mines operating 

throughout the Black Warrior and 

Cahaba watersheds, and one proposed 

graphite mine permitted for future 

operations in the Coosa watershed. 

Surface and subsurface coal mines have 

the potential to degrade water quality 

from erosion and sedimentation, and the 

presence of mines near rivers and 

streams elevates the risk of water 

contamination. These mining processes 

expose metallic minerals, which can 

then enter the surrounding waterways, 

increasing conductivity, increasing 

acidity, and contaminating the 

waterways with heavy metals, creating 

toxic conditions for aquatic fauna 

(Stiefel and Busch 1983, pp. 187–212; 

Neves et al. 1997, pp. 69–70). 

In addition to surface and subsurface 

mining, oil and gasoline extraction and 

transportation is also present within the 

range of the coal darter. In 2016, there 

was a near disaster in the range of the 

coal darter when 252,000 gallons of 

gasoline spilled from the Colonial 

Pipeline into an old mining pond that 

feeds into a tributary of the Cahaba (EPA 

2016, unpaginated). The spill was 

contained before reaching the Cahaba 

River; however, this incident illustrates 

that the risk of threat to the species from 

resource extraction does exist. 

Resource Extraction: Silviculture 

The forestry industry, in the form of 

monoculture pine plantations, is 

prevalent throughout the range of the 

coal darter. Forestry can have negative 

implications for water quality in the 

form of nonpoint source pollution, 

especially when BMPs are not 

implemented. Excessive sedimentation 

in Hatchet Creek has been documented 

since the mid-1990s. The excessive 

sedimentation and subsequent loss of 

clean gravel and pool habitat has been 

attributed to forestry activities, 

including removal of riparian vegetation 

(Alabama Department of Conservation 

and Natural Resources (ADCNR) 2006, 

p. 3). Sedimentation of streams and 

waterways has the potential to increase 

due to accelerated erosion from logging 

roads and timber harvest. We recognize 

that modern silvicultural operations are 

widely implemented in accordance with 

State-approved BMPs, and the 

adherence to these BMPs broadly 

protects water quality, particularly 

related to sedimentation. However, in 

many cases, sedimentation in streams is 

a continuing legacy effect from past eras 

of poor logging practices (Service 2023, 

p. 27). 

Urbanization 

Urbanization is a significant source of 

water quality degradation that can 

reduce the survival of aquatic 

organisms, including the coal darter. 

Urbanization refers to a change in land 

cover and land use from forests or 

agriculture to increased density of 

residential and commercial 

infrastructure. Urban development can 

stress aquatic systems in a variety of 

ways, including increasing the 

frequency and magnitude of high flows 

in streams, increasing sedimentation 

(construction activities) and nutrient 

loads (lawn fertilization), increasing 

contamination and toxicity (from 

household pesticides and herbicides), 

altering flows because of an increase in 

impervious surfaces (i.e., flashier flows), 

and altering stream morphology, 

stability, and chemistry, which can 

result in a decreased diversity of fishes, 

aquatic insects, plants, and amphibians. 

Sources and risks of an acute or 

catastrophic contamination event, such 

as a leak from an underground storage 

tank, pipeline, or wastewater system, or 

a hazardous materials spill on a 

highway, also increase as urbanization 

increases. 

Changes to both frequency and 

magnitude of stream flows have direct 

effects on important structural habitat 

for coal darters. Stream channelization 

and higher flows reduce overall stream 

cover and other natural substrates like 

boulders, cobble, and gravel, and they 

remove large woody structures and 

other terrestrial plant materials. As a 

result, urban streams have lower habitat 

heterogeneity, stable substrates, and 

amounts of plant material, which 

negatively impacts the coal darter’s 

sheltering, breeding, and feeding. 

Birmingham is the third largest city in 

the State of Alabama and was ranked as 

the largest city until the 2020 census. It 

continues to be one of the fastest 

growing metropolitan areas in the State. 


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Despite the population of Birmingham 

decreasing between 1992 and 2011, 

urban cover over that time period 

increased from 9.4 percent to 35.7 

percent due to expansion of the 

metropolitan area (Dosdogru et al. 2020, 

p. 2). The upper part of the Cahaba 

River watershed and the southeastern 

part of the Locust Fork watershed drain 

a significant portion of the Birmingham 

metropolitan area. The overall 

degradation of water and habitat quality 

because of increased urbanization has 

negative implications for coal darter 

populations currently, and into the 

future, as discussed below under 

Current Condition and Future 

Condition. 

Climate Change 

Changing climate conditions can 

influence coal darter viability through 

changes in water temperature and 

precipitation patterns that result in 

increased flooding, prolonged droughts, 

or reduced stream flows. Since the 

1970s, moderate to severe droughts in 

the Southeast have increased by 12 

percent during spring months and by 14 

percent during summer months (Jones et 

al. 2015, p. 126). Reduced baseflows due 

to droughts can cause population 

declines, habitat loss, and degraded 

water quality (decreased dissolved 

oxygen and temperature alteration) 

leading to death, crowding of 

individuals leading to stress, and 

decreased reproduction in stream fish 

populations. Increased groundwater 

withdrawal for agriculture or other 

human needs during droughts may 

potentially exacerbate the impacts of 

reduced quantity or frequency of 

precipitation. 

Climate models for the southeastern 

United States project that average 

annual temperatures will increase, cold 

days will become less frequent, the 

freeze-free season will lengthen by up to 

a month, days with temperatures 

exceeding 95 degrees Fahrenheit will 

increase, heat waves will become 

longer, and the number of category 5 

hurricanes will increase (Ingram et al. 

2013, p. 32; IPCC 2021, entire). While 

these climate models predict variability 

into the future, they suggest that the 

region will be subjected to more 

frequent large storms (hurricanes) with 

severe flooding and extremely low flows 

during droughts. Average and extreme 

precipitation is expected to increase, 

and subsequently, river flooding is also 

expected to increase. Extreme weather 

events, such as flash flooding associated 

with heavy precipitation events, are 

projected to increase in the future 

within the range of the coal darter, and 

these events can impact the coal darter 

through habitat degradation and 

displacement, injury, or even mortality 

(Service 2023, pp. 29–30). 

Future changes in climate within the 

coal darter’s range include increases in 

temperatures, especially for summer 

and fall, and increases in overall 

precipitation. Therefore, the watersheds 

occupied by coal darters could 

experience moderate to significant 

changes in climate by the 2050s, 

especially under scenarios run for 

representative concentration pathway 

(RCP) 8.5 (corresponding to high levels 

of carbon emissions). Increases in 

summer temperatures coupled with 

decreased instream flow can increase 

water temperatures and reduce 

dissolved oxygen levels, while flashier 

flows can increase soil erosion and 

stream sedimentation. 

Low Genetic Diversity 

Low genetic diversity makes the coal 

darter vulnerable to threats. Greater 

genetic diversity results in greater 

potential to adapt to a changing 

environment through natural selection. 

Reduced genetic diversity in a 

population can limit its adaptive 

potential. Small populations often have 

lower genetic diversity because there are 

fewer individuals. Small populations 

are also susceptible to genetic 

phenomena of inbreeding depression, 

population bottlenecks, and genetic 

drift, which can lead to a greater 

reduction in genetic diversity over time 

and reduced fitness of the population, 

leaving it more vulnerable to changing 

environmental conditions. The 

combination and interaction of these 

negative demographic and genetic 

effects on a small population can lead 

the population into an extinction vortex. 

Effective population size (Ne) goes 

hand in hand with genetic diversity. 

There are two heuristics relating 

effective population size to conservation 

biology principles. The first is the 50/ 

500 ‘‘rule of thumb,’’ which states that 

if a population’s estimated effective 

population size is greater than 500, then 

it will maintain evolutionary potential 

and adaptive capacity over time. 

However, an effective population size of 

fewer than 50 would place the 

population in the extinction vortex, and 

as the Ne falls below 500 and moves 

towards 50, the population becomes 

increasingly at risk of loss in genetic 

variation. The more conservative theory 

is the 100/1,000 ‘‘rule of thumb,’’ which 

states that an estimated effective 

population size of more than 1,000 is 

needed to maintain evolutionary 

potential, and an effective population 

size of fewer than 100 would place the 

population in the extinction vortex. 

In 2018 to 2020, range-wide genetic 

analyses were carried out for the coal 

darter, which included samples from 

the Cahaba River, Locust Fork, and 

Hatchet Creek. No samples were 

included in the analysis from Weogufka 

Creek, because individuals at that site 

were discovered in 2021, after this 

genetic work was completed. As such, 

the Coosa River system is represented 

only by Hatchet Creek in the genetics 

analysis. 

Results show that populations were 

historically connected and shared gene 

flow, however they are currently 

functionally isolated, showing no gene 

flow between the three watersheds 

(Jones and Sandel 2019, entire; Jones 

2021, entire). Genetic diversity was 

relatively low across all three 

watersheds as indicated by the observed 

and expected heterozygosity (Ho and He) 

and percent polymorphic loci. The 

Hatchet Creek population’s genetic 

diversity is considered very low (Jones 

and Sandel 2019, entire; Jones 2021, 

entire). Effective population size (Ne), 

the number of breeding individuals in 

an idealized population that would 

maintain genetic diversity, was also 

reported for each of the watersheds. The 

effective population size for the Black 

Warrior population is 2,759 (range of 

2,158–3,823); Cahaba River population 

is 3,145 (range of 2,423–4,480); and 

Coosa River population is 268 (range of 

252–290) (Jones and Sandel 2019, pg. 5; 

Jones 2021, pg. 22). In the Coosa River, 

Hatchet Creek’s effective population 

size is an order of magnitude lower than 

the other two populations (Jones 2021, 

entire). 

Summary 

A summary of the threats acting on 

coal darter populations in each river 

system is presented below in table 3. 

The magnitude of each of these threats 

varies from river system to river system. 

Details on the impacts of the different 

threats on coal darter populations are 

provided below under Current 

Condition. 


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TABLE 3—SUMMARY OF THREATS IN EACH RIVER SYSTEM

Black Warrior Cahaba Coosa 

• Water quality degradation from: 

• Urbanization; 

• Active and reclaimed mines; and 

• Agriculture (including poultry operations); and 

• Silviculture—legacy effects 

• ∼50% reduction in range. 

• Low genetic diversity. 

• Climate change. 

• Water quality degradation from: 

• Urbanization; 

• Silviculture—legacy effects; 

• Active and reclaimed mines; and 

• Agriculture. 

• Low genetic diversity. 

• Climate change. 

• Water quality degradation from: 

• Agriculture. 

• Silviculture—legacy effects; and 

• Future mining. 

• ∼90% reduction in range. 

• Very low genetic diversity. 

• Low effective population size. 

• Climate change. 

Conservation Efforts and Regulatory 

Mechanisms 

The coal darter is not State-protected 

in Alabama but is included in the 

Alabama State Wildlife Action Plan 

(SWAP), where it is assigned a ‘‘priority 

2’’ (‘‘high conservation concern’’) status 

(ADCNR 2015, pg. 19). There have been 

no captive propagation efforts for the 

species. The Geological Survey of 

Alabama (GSA) completed targeted 

surveys for the species in the Locust 

Fork in 2001, and rangewide in 2022 in 

partnership with the Service. 

Additionally, GSA, ADEM, ADCNR, and 

other partners have conducted fish 

Index of Biotic Integrity (IBI) 

assessments, a fish community-based 

assessment of stream health, in 

waterways throughout the State, 

including areas within the coal darter’s 

range (Service 2023, pp. 31–32). 

Priority watersheds within the range 

of the coal darter have been designated 

as ‘‘strategic habitat units’’ (SHUs) by 

the Alabama Rivers and Streams 

Network (ARSN). The SHU concept was 

created to prioritize efforts and leverage 

capacity among partners (government, 

nongovernmental organizations, private 

industry) to implement restoration and 

recovery of listed and rare aquatic 

species. Locust Fork, the Cahaba River, 

and Hatchet Creek have all been 

designated as SHUs. However, 

Weogufka Creek does not have an SHU 

designation. 

Habitat restoration has been one of the 

most influential conservation efforts 

positively affecting coal darters. 

Projects, such as stream bank 

stabilization and dam removal, have 

been completed or planned by State and 

Federal partners, nonprofit 

organizations, and private landowners. 

These types of restoration projects are 

not specifically targeting coal darter 

conservation, but they aim to improve 

the habitat quality in general for the 

benefit of imperiled aquatic species. 

Cahaba 

The Cahaba River has a long history 

of water quality declines and 

subsequent remediation activities 

(Thom et al. 2013, pp. 60–62). In 

recognition of these water quality 

challenges, EPA and the State of 

Alabama began working on measures to 

improve the water quality of the river 

under the auspices of the CWA. The 

CWA regulates water quality standards 

for surface waters and discharges of 

pollutants into the waters of the United 

States. The CWA made point source 

discharge into navigable waters without 

a permit unlawful in 1972. The EPA has 

authority to enforce the CWA, and with 

that authority, has developed national 

water quality criteria recommendations 

for pollutants found in surface waters 

and has implemented various pollution 

control programs (i.e., wastewater 

standards for industry) (EPA 2021, 

entire). 

Stormwater runoff containing 

pollutants is often transported through 

municipal separate stormwater sewer 

systems (MS4s), which discharge 

without treatment into local waterways 

(Service 2023, p. 33). An MS4 is owned 

by a public entity and is designed to 

collect and convey stormwater that 

discharges to waters of the United 

States. It is not part of a combined sewer 

or a publicly owned treatment facility or 

works (EPA 2023, entire). Administered 

under the National Pollution Discharge 

Elimination System (NPDES) permit 

program, MS4 permits require 

development and implementation of a 

comprehensive storm water 

management program (SWMP) that 

addresses prevention, treatment, 

removal, monitoring, and other 

measures to control the quality of 

stormwater that travels through storm 

drains to waters of the United States 

(EPA 2021, introduction). At present, 

several urban areas in the Upper Cahaba 

are designated as part of the MS4 

program. These permits are regulated 

under the NPDES system, are treated as 

point sources by the EPA, and receive 

waste load allocations (WLAs) under the 

total maximum daily load (TMDL) 

program, which is a calculation of the 

maximum amount of a particular 

pollutant that can enter a water body 

and allow that water body to meet water 

quality standards (Service 2023, p. 34). 

Thereby, under the CWA, point source 

discharges of pollutants (including 

stormwater) are currently being 

regulated. 

In addition, there are processes in 

place to manage new discharges into the 

river from industrial sources (e.g., 

industrial plants, mining, and 

wastewater). Water quality has 

substantially improved in recent 

decades due in part to the NPDES and 

the NPDES MS4 permits in the upper 

watershed, the TMDL program, and a 

general trend towards better stormwater 

management and soil retention 

measures in the watershed. TMDLs 

establish pollution reduction targets, 

allocate load reductions for pollutant 

sources, and include a margin of safety 

while also accounting for seasonal 

variability of water quality. Currently, 

the TMDL for Buck Creek, Cahaba 

Valley Creek, and the Cahaba River 

adhere to ADEM’s water quality 

standards for the designated use 

classification of that stream. Overall, 

this has improved turbidity and 

improved nutrient loading near the coal 

darter population (Service 2023, pp. 34– 

35). 

Significant habitat restoration efforts 

have also taken place in the Cahaba 

River. For example, in 2004, The Nature 

Conservancy, the U.S. Army Corps of 

Engineers, and other partners removed a 

vented ford dam named the Marvel 

Slab. Built in the 1960s and 1970s, the 

dam was originally used for transporting 

coal and timber across the river. It was 

67 meters (219 feet) long, 1.8 meters (5.9 

feet) tall, and 7.6 meters (24.9 feet) wide 

with 40 culverts through which water 

could flow. Ecologically, the barrier 

functioned as a dam, blocking upstream 

movement of aquatic fauna. Removal of 

the structure restored connectivity 

between the river reaches. When 

compared with historical records, fish 

monitoring conducted after the dam was 

removed indicated that several fish 

species, including two that are Federally 

listed under the Act, have extended 

their ranges as a result of the removal 

(Bennett et al. 2015, pp. 51–61). 


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Black Warrior 

Currently, within the Black Warrior 

River system, the coal darter is 

restricted to the Locust Fork. The Locust 

Fork has its own history of water quality 

issues and remediation. In 1998, it was 

added to the EPA’s list of impaired and 

threatened waters in Alabama (i.e., 

Alabama’s 303(d) list) due to siltation 

and nutrient loading concerns along 

with the presence of federally 

endangered and threatened species. The 

ADEM performed monitoring of four 

303(d) segments between 2012 and 2016 

by assessing the macroinvertebrate 

community and habitat quality, and 

evaluating water quality data (Service 

2023, pp. 35–36). 

From these assessments, the 

macroinvertebrate community was 

characterized as ‘‘fair’’ for each of the 

four segments; habitat quality was 

‘‘optimal’’ at the most upstream 

segment, ‘‘sub-optimal’’ at the middle 

two segments, and ‘‘marginal’’ at the 

most downstream segment; and the 

numerical water quality parameters 

(total suspended solids and turbidity) 

were below the eco-reference guidelines 

for all four segments (ADEM 2018, pp. 

14–16). Based on these monitoring 

results, in 2018, the Locust Fork was 

removed from the 303(d) list for 

siltation, and it was also removed from 

the 303(d) list for nutrients because a 

TMDL was established (Service 2023, p. 

36). 

Synergistic and Cumulative Effects 

We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA report, we have not only 

analyzed individual effects on the 

species, but we have also analyzed their 

potential cumulative effects. We 

incorporate the cumulative effects into 

our SSA analysis when we characterize 

the current and future conditions of the 

species. Our assessment of the current 

and future conditions encompasses and 

incorporates the threats individually 

and primary threats cumulatively. Our 

current and future conditions 

assessment is iterative because it 

accumulates and evaluates the effects of 

all the factors that may be influencing 

the species, including threats and 

conservation efforts. Because the SSA 

framework considers not just the 

presence of the factors, but to what 

degree they collectively influence risk to 

the entire species, our assessment 

integrates the cumulative effects of the 

factors and replaces a standalone 

cumulative effects analysis. 

Current Condition 

A thorough review of the coal darter’s 

current condition is presented in 

chapter 5 of the SSA report (version 1.1, 

Service 2023, pp. 39–53). 

Currently, the coal darter is known 

from three tributary systems of the 

Mobile River Basin: Locust Fork of the 

Black Warrior River, Cahaba River, and 

Hatchet and Weogufka Creeks of the 

Coosa River. Coal darter movements and 

dispersal patterns within these systems 

are not well understood. Recent 

population genetics work by University 

of West Alabama supports gene flow 

within each river system. However, 

migration rate estimates indicate no 

individuals migrating between river 

systems; thus, no contemporary gene 

flow exists between systems. These 

results indicate that each river system is 

demographically independent of each 

other. Using these data, populations 

were delineated based on river system, 

resulting in three populations that will 

serve as the resiliency units for 

assessing population resiliency: the 

Black Warrior, the Cahaba, and the 

Coosa. Currently, each population is 

found in a different Level III ecoregion. 

Since no other biologically meaningful 

boundaries are known to exist for the 

coal darter, we determined the 

representative units to be the same as 

the resiliency units (populations). 

Based on the coal darter’s individual 

and population needs, such as adequate 

water quality and quantity, the 

availability of clean gravel/cobble 

substrates, sufficient food sources, and 

appropriate population size and 

connectivity to support reproduction 

and recruitment within a population, 

we developed an approach using key 

habitat and demographic factors to 

assess population resiliency. We 

assessed two demographic condition 

parameters (genetic health and 

persistence through time) and two 

habitat condition parameters (Human 

Disturbance Gradient Index and habitat 

quantity) (see table 4, below). Based on 

the coal darter’s lifespan, we used the 

time period from 2007 to 2022 to inform 

the current condition of the species. 

For a population to be resilient in the 

context of genetic health, a population 

should have sufficient standing genetic 

variation and effective population size 

(Ne). The 50/500 and 100/1,000 ‘‘rules of 

thumb’’ threshold were used to describe 

the minimum effective population size 

needed for both short-term and longterm viability. Greater genetic diversity 

in a population will improve the fitness 

of a population, equating to higher 

survival and rebound potential in the 

face of demographic and environmental 

stochasticity. An Ne greater than 50 or 

100 is necessary to prevent the 

deleterious effects of inbreeding 

depression and genetic drift (i.e., shortterm viability) (Service 2023, p. 41). The 

upper thresholds of the Ne ‘‘rule of 

thumb’’ (500 or 1,000) will be important 

for our current condition representation 

because above this upper threshold, a 

population is expected to be able to 

maintain its adaptive capacity (i.e., 

long-term viability). However, the upper 

threshold of 500 or 1,000 is important 

to consider for resiliency as well, 

because when the Ne declines from 500 

to 50, or from 1,000 to 100, the risks of 

genetic diversity loss progressively 

increase. Thus, an Ne below the upper 

thresholds of 500 or 1,000 are of 

concern for both population resiliency 

and species representation. 

We consider a population with high 

resiliency to have high or moderate 

genetic diversity and an Ne that exceeds 

the 500/1,000 threshold. Thresholds for 

genetic diversity could not be quantified 

in table 4, below, because the genetic 

data we have available represent a 

snapshot of the current condition, and 

we do not have historical genetic data 

to which we can compare them. What 

is considered high, moderate, and low 

genetic diversity can vary from taxa to 

taxa. However, after consulting with 

conservation genetics experts on the 

coal darter’s genetics and the scientific 

literature on genetic diversity results of 

other similar species, we determined 

that the Cahaba and Black Warrior 

populations exhibit ‘‘low’’ genetic 

diversity and the Hatchet Creek 

population exhibits ‘‘very low’’ genetic 

diversity. We used these expert 

opinions along with the Ne 500/1,000 

‘‘rules of thumb’’ to differentiate our 

ranking of moderate resiliency and low 

resiliency (Service 2023, pp. 41–42). We 

used research by University of West 

Alabama, which provided range-wide 

genetic diversity metrics and effective 

population size estimates for coal darter, 

in our assessment of current genetic 

health. 

When determining the current 

condition of the coal darter, the extent 

of the current range in the context of the 

historical range was important to 

consider (see table 4, below). 

Impoundments constructed in the Black 

Warrior and Coosa Rivers in the late 

1800s to the mid-1900s, converted 

mainstem areas once occupied by coal 

darters to unsuitable conditions, 

resulting in large-scale extirpation 

throughout the species’ historical range. 

This was an important consideration for 

the species because coal darters are now 

restricted to smaller areas than they 

were previously, which has 


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implications for maximum attainable 

population size, access to suitable 

habitat, and the overall ability to move 

and disperse when conditions are 

unfavorable at certain locations, all of 

which are important needs of the 

species in order to successfully 

reproduce and maintain populations 

(Service 2023, p. 42). 

To better assess coal darter resiliency, 

thresholds were standardized for each 

population by using a percentage of 

historical range in each river system to 

represent potential habitat for the 

species (see table 4, below). We 

determined that a population with high 

resiliency would have lost no more than 

one third of its historical range; a 

population with moderate resiliency 

would have lost between one third and 

two thirds of its historical range; and a 

population with low resiliency would 

have lost more than two thirds of its 

historical range. 

The coal darter’s sensitivity to habitat 

alterations from human activities were 

also used to assess resiliency. In order 

to describe the level of impairment and 

risk to natural aquatic habitats that arise 

from human activities, the Human 

Disturbance Gradient Index (HDGI) was 

used (see table 4, below). The HDGI 

considers a variety of landscape 

variables associated with disturbance to 

aquatic environments. Specifically, 

these variables include: human density 

(population count/kilometer of 

watershed), phosphorus load 

(kilograms/hectare/year), percent 

developed (percentage of the watershed 

that is developed), percent barren 

(percentage of the watershed that is 

barren due to human activities), percent 

pasture (percentage of the watershed 

that is pasture), percent crop 

(percentage of watershed that is used for 

row crops), road density (kilometers of 

roads/square kilometer of watershed), 

and road-stream crossings (number of 

road-stream crossings per kilometer of 

road). Each landscape variable is 

weighted by a factor known as the 

landscape development intensity (LDI) 

index, which ranges between 0 and 10, 

and relates land-use classifications with 

the intensity of nonrenewable energy 

consumption. An LDI of 0 corresponds 

to natural environments, and an LDI of 

10 corresponds to highly developed 

urban environments. The sum of the 

weighted landscape variables calculated 

for each hydrologic unit code (HUC) 12 

watershed in the range equates to the 

HDGI (Service 2023, pp. 42–43). 

The final HDGI for each population of 

the coal darter was found by averaging 

the HDGI of its constituent HUC 12 

watersheds. Stream reaches with HDGI 

values that exceed 200 were found to 

correspond to poor biological condition 

with low diversity of fish species, 

mostly inhabited by generalist species 

tolerant of habitat uneasiness (Service 

2023, p. 43). Therefore, we expect the 

abundance and probability of coal darter 

presence to decline when HDGI scores 

approach and exceed 200. However, we 

acknowledge that landscape 

heterogeneity within the scale of a HUC 

12 watershed may allow suitable 

environmental conditions to persist 

within an otherwise largely disturbed 

landscape. Further, based on our 

analysis, we are most confident that 

HDGI scores below 175 reflect good 

conditions and those above 300 reflect 

poor conditions. For these reasons, 

HDGI scores below 175 were classified 

as high condition or most suitable for 

the coal darter, with high probability of 

occurrence and high abundance; scores 

between 176 and 300 as moderate 

condition, with moderate probability of 

occurrence and moderate abundance; 

and scores greater than 300 as low 

condition, with the lowest probability of 

occurrence or very low abundance and 

posing the highest levels of risk to the 

species (Service 2023, pp. 42–43; see 

table 4, below). 

Habitat quantity is another important 

metric to assess the current condition of 

the coal darter using HUC 12 

watersheds as our units. The greater 

quantity of connected, suitable habitat 

available within a population, the 

greater the population resiliency. 

Resiliency was classified into one of 

three classes: High, Moderate, and Low. 

Thresholds for habitat quantity were 

established by enumerating extent of 

coal darter presence in the context of 

the historical range limits (see table 4, 

below). 

TABLE 4—CONDITION CATEGORIES FOR DEMOGRAPHIC AND HABITAT PARAMETERS USED TO ASSESS COAL DARTER

RESILIENCY

[Service 2023, p. 45] 

Parameter 

Condition category 

High (3) Moderate (2) Low (1) 

Genetic health .............................. Genetic diversity considered ‘‘moderate’’ 

or ‘‘high’’; Ne exceeds the 500/1,000 

‘‘rule of thumb’’ threshold.

Genetic diversity considered ‘‘low’’; Ne

exceeds the 500/1,000 ‘‘rule of thumb’’ 

threshold.

Genetic diversity considered ‘‘very low’’; 

Ne does not exceed the 500/1,000 

‘‘rule of thumb’’ threshold. 

Percentage of historical range 

with current records.

Greater than 66 percent of historical 

range is currently occupied.

33–66 percent of historical range is currently occupied.Less than 33 percent of historical range 

is currently occupied. 

Human Disturbance Gradient 

Index (HDGI).

0–175 ........................................................ 176–300 .................................................... Greater than 300. 

Habitat quantity ............................ Greater than or equal to 8 currently occupied HUC 12 units.4–7 currently occupied HUC 12 units ...... Fewer than 4 currently occupied HUC 12 

units. 

For each parameter, we assigned a 

score from 1 to 3 (1 = low, 2 = moderate, 

3 = high) based on condition categories 

that we developed in coordination with 

species experts. For the overall 

resiliency of a population, scores were 

summed for all parameters. The 

minimum possible sum is 4 (a score of 

low for each of the four parameters), and 

the maximum possible sum is 12 (a 

score of high for each of the four 

parameters). We set thresholds for 

overall resiliency scores based on the 

minimum and maximum possible sums 

and the number of categories (3: high, 

moderate, low) (see table 5, below). The 

following discussion describes our 

reasoning for each parameter, the 

condition categories, and the 

methodology we used to derive an 

overall score for each factor. 


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TABLE 5—THRESHOLDS FOR OVERALL POPULATION RESILIENCY

[Service 2023, p. 45] 

Overall population resiliency 

High Moderate Low 

Parameter Score Sum ................................................................................................................. 10–12 7–9 4–6 

Resiliency 

Black Warrior—The overall resiliency 

for the Black Warrior population is 

moderate (see table 6, below). Genetic 

diversity, as expressed by observed and 

expected heterozygosity and percent 

polymorphic loci, is considered low for 

this population by experts. 

Additionally, the effective population 

size is higher than the 500 or 1,000 

‘‘rules of thumb’’ threshold at 2,759 

(range of 2,158–3,823) (Jones and Sandel 

2019, pg. 5; Jones 2021, pg. 22). Due to 

the low genetic diversity but high 

effective population size (exceeding the 

500/1,000 threshold), a score of 

moderate is assigned for genetic health 

of the Black Warrior population. The 

Black Warrior population has 

experienced a 50 percent reduction, at 

minimum, in occupied range due to the 

installation of impoundments in the late 

1800s and early 1900s, resulting in a 

moderate score for the percentage of 

historical range with current records 

metric. The HDGI for the Black Warrior 

population is most heavily influenced 

by a combination of moderate amounts 

of development and urbanization in 

northern Jefferson County and more 

intensive livestock agriculture in the 

area. The averaged HDGI for currently 

occupied HUC 12 watersheds is 207, 

which results in a classification of 

moderate. With nine HUC 12 

watersheds currently occupied, this 

population scores high for habitat 

quantity. However, despite the effects of 

these impacts, the Black Warrior 

population currently has an adequate 

effective population size and 

connectivity to support reproduction 

and recruitment. 

Cahaba—The Cahaba River is 

considered the stronghold for the 

species, reflected by consistent catch 

records from the 1960s to present day. 

Trends in population numbers can be 

difficult to discern due to differences in 

sampling methods and purpose over the 

years, but there continues to be 

evidence of reproduction and 

recruitment. However, there is evidence 

that population numbers of the coal 

darter may be declining in the Cahaba 

River, especially in the upper portion of 

the watershed around the Birmingham 

metropolitan area. A comparison by 

experts of historical fish community 

records spanning from 1964–1983 to 

records obtained in 1994–1997 at 12 

sites in the upper Cahaba River 

watershed in the Birmingham area 

indicated an overall decrease in fish 

species diversity, pointing to habitat 

degradation related to urbanization as 

the primary reason. Coal darters were 

found to have the greatest decline of all 

darter species, with 330 total specimens 

collected from historical samples (out of 

46 samples) and only 6 collected from 

the same sites in the 1995–1997 samples 

(out of 48 samples). Along with coal 

darters, the study found disturbancesensitive species, in general, to have 

decreased in percent relative abundance 

(Service 2023, p. 47). 

The overall resiliency for the Cahaba 

population is moderate (see table 6, 

below). Genetic diversity of the Cahaba 

population is low, and the effective 

population size is higher than 500 or 

1,000 ‘‘rules of thumb’’ threshold at 

3,145 (range of 2,423–4,480) (Jones and 

Sandel 2019, pg. 5; Jones 2021, pg. 22). 

Due to the low genetic diversity but 

high effective population size 

(exceeding the 500/1,000 threshold), the 

Cahaba population scores moderate for 

genetic health (see table 6, below). The 

population genetic results indicate that 

the Cahaba population currently has a 

lower expected heterozygosity and 

percent polymorphic loci when 

compared to the Black Warrior 

population, yet a higher effective 

population size than the Black Warrior 

population (Service 2023, p. 46). One 

explanation for this could be a decrease 

in population size because of degraded 

water quality in the Cahaba River 

beginning in the early 1900s up to the 

enactment of the CWA (1972). A 

significant decrease in the number of 

individuals in this population would 

have resulted in a loss of genetic 

diversity. Because of their short 

generation time, coal darter numbers 

may have been able to rebound faster 

than it would take to increase genetic 

diversity since the latter would be 

dependent on the accumulation of novel 

mutations which would be expected to 

occur over thousands of years. 

The Cahaba population has 

experienced the least reduction in range 

of the three populations. No major 

impoundments were constructed within 

the mainstem of the Cahaba River. 

However, a single low head dam located 

at Highway 280 currently prevents 

movement of coal darters upstream. 

While the species still occupies sites 

approximately 20 miles upstream of this 

dam, those individuals are isolated from 

downstream individuals and gene flow 

is likely unidirectional, creating a 

greater risk of further loss in genetic 

diversity in this portion of the river 

(Zarri et al. 2022, entire). To date, no 

range reduction of the species due to 

this dam has been observed. The Cahaba 

population scores high for the 

percentage of historical range with 

current records metric (see table 6, 

below). 

The Cahaba River HDGI score is 

largely influenced by intense 

urbanization associated with the City of 

Birmingham and its suburbs. The 

averaged HDGI for currently occupied 

HUC 12 watersheds is 356 (Service 

2023, p. 46), which results in a score of 

low for the Cahaba population (see table 

6, below). Eight HUC 12 watersheds are 

currently occupied, which results in a 

score of high for habitat quantity (see 

table 6, below). 

Coosa—The overall resiliency for the 

Coosa population is low (see table 6, 

below). Genetic diversity is considered 

very low for this population. Since 

Weogufka Creek discovered individuals 

in 2021 following the completion of the 

genetic analysis, only the Hatchet Creek 

population was used in the Coosa River 

system genetics results, The effective 

population size is above the ‘‘rule of 

thumb’’ threshold of 50 or 100 that is 

necessary to prevent deleterious effects 

of inbreeding depression and genetic 

drift. However, the effective population 

size is still considered low at 268 (range 

of 252–290) (Jones and Sandel 2019, pg. 

5; Jones 2021, pg. 22) and is an order of 

magnitude lower than the other two 

populations. Furthermore, the effective 

population for Hatchet Creek falls in 

between the upper and lower bounds of 

the 50/500 and 100/1,000 rule 

thresholds, indicating that the 

population is at high risk of continual 

loss of genetic diversity. This low 

effective population size may also 

reflect the ongoing deleterious genetic 

effects of a population bottleneck or the 


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ongoing habitat limitations that prevent 

population sizes reaching those found 

in the other two populations or both 

(Franklin 1980, pp. 135–149; Frankham 

et al. 2014, pp. 56–63; Franklin et al. 

2014, pp. 284–285). Based on the lower 

effective population size in Hatchet 

Creek coupled with the very low genetic 

diversity, the Coosa population results 

in a score of low for genetic health (see 

table 6, below). 

The Coosa population has 

experienced the greatest range reduction 

of the three coal darter populations. 

With a 90 percent reduction in range 

compared to pre-impoundment 

historical condition, this population is 

assessed a score of low for the 

percentage of historical range with 

current records metric (see table 6, 

below). 

The HDGI for the Lower Weogufka 

Creek HUC 12 had a value of 51.5, and 

the HDGI for the Lower Hatchet Creek 

HUC 12 had a value of 40.7 (Service 

2023, p. 49). The averaged HDGI score 

for currently occupied HUC 12 

watersheds is 46, which results in a 

score of high for the HDGI metric for 

this population (see table 6, below). 

Regarding the habitat quantity metric 

for the Coosa population, only two HUC 

12 watersheds are currently occupied: 

Lower Hatchet Creek and Lower 

Weogufka Creek. Within these two HUC 

12 boundaries, the coal darter is only 

known from one site in Weogufka Creek 

and 14.5 rkm (9 rmi) of Hatchet Creek. 

Because of the low quantity of occupied 

habitat, this population scores low for 

the habitat quantity factor. 

TABLE 6—CURRENT CONDITION RESILIENCY RESULTS BY POPULATION FOR THE COAL DARTER

[Service 2023, p. 50] 

Factor 

Population 

Black Warrior Cahaba Coosa 

Genetic health .................................................................. Moderate (2) ....................... Moderate (2) ....................... Low (1). 

Percentage of historical range with current records ........ 50 percent: Moderate (2) .... 90 percent: High (3) ............ 10 percent: Low (1). 

Human Disturbance Gradient Index (HDGI) .................... 207: Moderate (2) ............... 356: Low (1) ........................ 46: High (3). 

Habitat quantity ................................................................. 9: High (3) ........................... 8: High (3) ........................... 2: Low (1). 

Overall resiliency .............................................................. Moderate (9) ....................... Moderate (9) ....................... Low (6). 

Representation 

Representation is the ability of a 

species to adapt to both near-term and 

long-term changes in its physical and 

biological environment. The best 

available scientific information suggests 

using population genetic analyses to 

characterize the coal darter’s current 

adaptive capacity. Due to the current 

isolation of coal darter populations, it is 

unlikely that gene flow exists among 

rivers (to increase genetic diversity), or 

that darter populations are able to shift 

to track suitable habitat conditions. 

Isolated coal darter populations must 

adapt to changing conditions in place, 

requiring sufficient genetic variation in 

order to respond to shifting selection 

pressures and any unexpected selection 

events, such as introduction of a novel 

disease or invasive species (Service 

2023, p. 52). 

The Cahaba River and Black Warrior 

populations meet the effective 

population size threshold ‘‘rule of 

thumb’’ of 500 or 1,000 to maintain 

evolutionary potential and adaptive 

capacity over time. By contrast, the 

Coosa population does not meet these 

effective population size thresholds for 

retaining adaptive potential. Coupled 

with its low genetic diversity, this 

population is at high risk of ongoing 

losses of standing genetic variation, 

lowering its capacity to respond to 

changing selection pressures. 

We estimate that the coal darter has 

low adaptive capacity based on the poor 

genetic condition of the Coosa 

population; the low genetic diversity, 

yet sufficient effective population sizes, 

of the Black Warrior and Cahaba 

populations; and the lack of 

connectivity between populations. 

Overall representation for the coal 

darter is currently low. 

Redundancy 

Redundancy refers to the ability of a 

species to withstand catastrophic events 

and is measured by the amount and 

distribution of resilient populations 

across the species’ range. Catastrophic 

events that could severely affect or 

extirpate entire coal darter populations 

include gas pipeline bursts and 

associated spills, changes in upstream 

land use that alter stream characteristics 

and water quality, and potential effects 

of climate change such as drought and 

increases in occurrence of flash-flooding 

events. 

Redundancy is characterized by 

having multiple, resilient and 

representative populations of the coal 

darter distributed throughout the 

species’ range. While there remain three 

populations distributed throughout the 

range and at a scale for which it would 

be unlikely for a single event to 

catastrophically affect all, one 

population (Coosa) has low resiliency to 

stochastic events and a higher risk of 

extirpation. The remaining two 

populations (Black Warrior and Cahaba) 

were found to be moderately resilient to 

stochastic events. Each population’s 

reduced resiliency prevents them from 

fully contributing to a high level of 

redundancy; therefore, the coal darter 

currently exhibits a moderate level of 

redundancy. 

Future Condition 

A thorough review of the coal darter’s 

future condition is presented in chapter 

6 of the SSA report (version 1.1, Service 

2023, pp. 54–58). 

In our SSA report (version 1.1, 

Service 2023, entire), we define viability 

as the ability of the coal darter to sustain 

natural populations in river and stream 

systems over time. In our assessments of 

factors influencing viability and current 

condition, we found that disturbance on 

the landscape negatively affects the coal 

darter’s ability to sustain natural 

populations and these disturbances can 

be attributed and measured by 

quantifying land use and cover types. 

To help address uncertainty associated 

with the degree and extent of potential 

future stressors and their impacts on the 

species’ needs, the concepts of 

resiliency, redundancy, and 

representation were assessed using two 

scenarios and time stepped them at 

years 2040 and 2050. We devised these 

scenarios by identifying information on 

primary threat factors arising from 

increasing human populations and 

resulting alterations to the habitat. The 

four scenarios use the EPA’s Integrated 

Climate and Land Use (ICLUS; version 

2.1.1, EPA 2017) model, which uses 

human demography as a primary means 

to project local land-use changes in the 

future with consideration of climate 

change. It is consistent with updated 

global socioeconomic scenarios (shared 


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socioeconomic pathways (SSPs)) and 

global climate change model targets 

(representative concentration pathways 

(RCPs)). Using the ICLUS models, we 

projected the future resiliency of coal 

darter populations using two future 

scenarios that consider a range of 

impacts from future urbanization and 

land-use change along with climate 

change effects. Data from the ICLUS 

model was used to predict future HDGI 

scores, which can be compared with the 

HDGI scores of each population from 

our current condition analysis. While 

other stressors were identified as factors 

influencing viability, such as 

impoundments and genetic health, we 

were unable to model these factors into 

the future. However, these stressors are 

expected to continue to limit the 

species’ viability into the future. Dams 

and impoundments are expected to 

constrain population extent, and genetic 

health is not expected to improve due 

to the long period of time required for 

mutations to occur that would improve 

genetic diversity (Service 2023, pp. 23– 

31). 

We used the best available data and 

models to project changes in human 

disturbance under a high impact 

scenario and a moderate impact 

scenario at year 2040 and 2050 (20 and 

30 years). This timeframe was 

reasonably certain to predict patterns of 

urbanization and agriculture, and how 

these land uses forecast patterns in the 

species’ range relevant to the coal darter 

and its habitat given the species’ short 

lifespan. In addition, catastrophic 

events (for example, invasive species, 

disease, and chemical spills) could have 

an immediate impact on the species, 

especially on the Coosa population due 

to its limited abundance and 

distribution. 

Results of HDGI under the two future 

scenarios did not vary greatly between 

the two scenarios within each 

population (Black Warrior: 610 and 635; 

Cahaba: 636 and 661; Coosa: 77 and 

141) (Service 2023, pp. 56–59). As 

stated above under Current Condition, 

HDGI scores below 175 are classified as 

high condition or most suitable for the 

coal darter, with high probability of 

occurrence and high abundance; scores 

of between 176 and 300 correspond to 

moderate condition, with moderate 

probability of occurrence and moderate 

abundance; and scores greater than 300 

are classified as low condition, with the 

lowest probability of occurrence or very 

low abundance and posing the highest 

levels of risk to the species. 

When compared to the current 

condition’s HDGI, the Black Warrior and 

Cahaba populations’ future HDGI scores 

nearly tripled and doubled, 

respectively. Therefore, aquatic habitats 

currently occupied by the coal darter 

will experience substantial levels of 

disturbance due to human urbanization 

activities, and the species’ likelihood of 

presence and abundance will continue 

to decline. Furthermore, the habitat 

quantity will also decrease. Due to the 

significant projected increase in human 

disturbance within the Black Warrior 

and Cahaba populations, resiliency of 

each of these populations is projected to 

decrease from moderate to low under all 

future scenarios (Service 2023, p. 56). 

While the future HDGI did not 

indicate poor habitat condition in the 

Coosa population, no habitat 

improvements are projected. The Coosa 

population of the coal darter is confined 

to small reaches of Hatchet and 

Weogufka creeks. These two tributaries 

of the Coosa River likely represent 

peripheral habitat that was sustained by 

now extirpated source populations in 

the Coosa River. As flow appears to be 

a predictor of species presence, 

population expansion in these streams 

is constrained by the lack of suitable 

flows and habitat in the upstream 

reaches. Further, given the natural state 

of these streams, it is unlikely density 

could increase. That is, the populations 

are likely at carrying capacity within 

these refugia. The Coosa population’s 

poor genetic health is projected to 

decline without the influx of any new 

genetic material. Therefore, projected 

resiliency of the Coosa population 

remains low (Service 2023, p. 56). 

The overall projected decline in 

resiliency decreases the Black Warrior 

and Cahaba populations’ contribution to 

future redundancy. Therefore, 

catastrophic events that occur across the 

regional or State scale could cause 

extirpation in both populations. 

Furthermore, the current low resiliency 

in the Coosa population leaves it 

susceptible to extirpation, and with 

heavy land-use changes projected to 

occur on the landscape surrounding this 

population, this population is likely to 

be extirpated by the 2040 and 2050 time 

steps. For these reasons, the overall 

redundancy under all future scenarios is 

low. 

We do not anticipate any 

improvement to the connectivity or 

adaptive capacity of the species. While 

our current condition assessment finds 

sufficient effective population size in 

the Black Warrior and Cahaba 

populations, the amount of habitat 

disturbance projected to occur, and 

probable range contraction, will reduce 

the effective population size and genetic 

diversity of these two populations. The 

overall representation for the coal darter 

under all future scenarios is assessed as 

low. 

Determination of Coal Darter’s Status 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an endangered species 

or a threatened species. The Act defines 

an ‘‘endangered species’’ as a species in 

danger of extinction throughout all or a 

significant portion of its range, and a 

‘‘threatened species’’ as a species likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range. The 

Act requires that we determine whether 

a species meets the definition of an 

endangered species or a threatened 

species because of any of the following 

factors: (A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. 

Status Throughout All of Its Range 

We have carefully assessed the best 

scientific and commercial information 

available regarding the past, present, 

and future threats to the coal darter. We 

considered whether the coal darter is 

presently in danger of extinction. Our 

review of the best available information 

indicates there are three populations 

across the known historical range in the 

Locust Fork of the Black Warrior River 

system, the Cahaba River system, and 

the Hatchet and Weogufka Creeks of the 

Coosa River system in Alabama. Genetic 

analysis indicates that the three 

populations were previously connected 

but are currently isolated and uniquely 

identifiable populations. Based on the 

coal darter’s individual and population 

needs, an approach including two key 

habitat (Human Disturbance Gradient 

Index (HDGI) and habitat quantity) 

factors and two demographic (genetic 

health and persistence through time) 

factors was used to assess population 

resiliency with an assigned score of 

high, moderate, or low. 

The current resiliency for both the 

Black Warrior and Cahaba populations 

is moderate. Impacts from habitat 

destruction and modification; the 

reduction of range as a result of 

impoundments (Black Warrior); and 

water quality degradation resulting from 

urbanization, mining, and agriculture 

(Factors A and E) appear to be affecting 

the coal darter at the population level 


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for these two resiliency units. Both also 

have low genetic diversity. The Black 

Warrior population has experienced at 

least a 50 percent reduction in occupied 

range due to the installation of 

impoundments in the late 1800s and 

early 1900s. However, despite the 

effects of these impacts, the Black 

Warrior and Cahaba populations 

currently have adequate effective 

population sizes and connectivity to 

support reproduction and recruitment. 

The Cahaba population has experienced 

the smallest range reduction (14 

percent) of the three populations and 

has had no major impoundments 

constructed within the mainstem of the 

Cahaba River. It is considered the 

stronghold for the species. 

The Coosa population has low 

resiliency due to habitat destruction and 

degradation resulting from dams and 

impoundments (Factors A and E). Only 

two HUC 12 watersheds are currently 

occupied in the Coosa population: 

Lower Hatchet Creek and Lower 

Weogufka Creek. Within these two HUC 

12 boundaries, the coal darter is only 

known from one site in lower Weogufka 

Creek and 9 rmi (14.5 rkm) of lower 

Hatchet Creek. The genetic diversity is 

currently very low for this population 

(an order of magnitude lower than the 

other two populations), and its 

inadequate effective population size is 

vulnerable to the deleterious effects of 

inbreeding depression and genetic drift. 

This low effective population size may 

also reflect the ongoing harmful genetic 

effects of a population bottleneck or the 

ongoing habitat limitations that prevent 

population sizes reaching those found 

in the other two populations or both. 

The species is currently extant in all 

three representation units, with two 

resiliency units (Black Warrior and 

Cahaba) having moderate resiliency. 

Both units with moderate resiliency 

contain effective populations sizes 

necessary for retaining adaptive 

potential. In contrast, the one unit 

(Coosa) with low resiliency does not 

meet the effective population size 

threshold for retaining adaptive 

potential. Coupled with low genetic 

diversity, the Coosa unit is currently at 

high risk of ongoing losses of standing 

genetic variation, lowering its capacity 

to respond to changing selection 

pressures. 

The three populations are distributed 

across northern Alabama, and two of the 

three units across the range currently 

have moderate resiliency, which 

bolsters the species’ ability to withstand 

catastrophic events. However, a 

catastrophic event (such as a chemical 

spill, change in upstream land use that 

alters stream characteristics and water 

quality, new impoundment, drought, or 

flash flood) could severely affect or 

extirpate coal darter populations such 

that the species is affected as a whole. 

This is exacerbated by one population 

(Coosa) having low resiliency to 

stochastic events and being at a higher 

risk of extirpation, while the remaining 

two populations (Black Warrior and 

Cahaba) have moderate resiliency to 

respond to stochastic events. 

Connectivity does not exist between any 

of the extant units. However, the species 

is not presently facing threats that place 

it at risk of extinction throughout all its 

range. Further, while multiple 

populations exist, each population’s low 

or moderate resiliency contributes to a 

moderate level of redundancy for the 

species. Therefore, we find that the 

species does not meet the definition of 

an endangered species. 

We forecasted the viability of the coal 

darter under four plausible scenarios 

into the future (summarized above 

under Future Condition). We assessed 

relevant risk factors that may be acting 

on the coal darter in the future and 

whether we could make reliable 

predictions about these factors and how 

they may impact the viability of the 

species. Since the main threats arise 

from increasing human populations and 

resultant alterations to the habitat, we 

used human demography as a means to 

project land-use changes in the future 

with consideration of climate change. 

We projected changes in human 

disturbance under two scenarios at year 

2040 and 2050 (i.e., 20 and 30 years). In 

considering the foreseeable future as it 

relates to the status of the coal darter, 

we considered the relevant risk factors 

(threats/stressors) acting on the species 

and whether we could draw reliable 

predictions about the species’ response 

to these factors. Our analysis in the SSA 

report of future scenarios over an 

approximately 30-year timeframe 

encompasses the best available 

information for future projections of 

land-use change. We determined that 

this approximately 30-year timeframe 

enables us to consider the threats/ 

stressors acting on the species and draw 

reliable predictions about the species’ 

response to these factors. This 30-year 

timeframe allows multiple generations 

of the short-lived coal darter to respond 

to potential land-use changes. 

Taking into account the primary 

factors influencing the species in the 

future (habitat destruction and 

degradation caused by land uses, and 

loss of connectivity between 

populations) and the potential impacts 

to the species’ needs, we project a 

decline in resiliency for the coal darter 

throughout its range. The current low 

resiliency in the Coosa population 

leaves it vulnerable to extirpation, 

especially considering the major landuse changes expected to occur to this 

landscape, and this population is 

projected to remain in low condition. 

Furthermore, the Black Warrior and 

Cahaba populations are projected to 

decline in resiliency, as will their 

projected contribution to redundancy 

over the next 30 years. Therefore, 

potential catastrophic events occurring 

across the Southeast or in the State of 

Alabama could result in extirpation of 

any of the populations. Given the 

scenarios assessed, it is projected that 

aquatic habitats currently occupied by 

the coal darter will experience 

substantial levels of disturbance due to 

human activities, reducing the amount 

of habitat available to the species and 

corresponding to declines in the 

species’ likelihood of presence and 

abundance. For these reasons, the 

overall projected redundancy for the 

coal darter under all future scenarios is 

low. 

Future projections also indicate that 

the coal darter will continue to have low 

adaptive capacity (low representation) 

based on (1) the poor genetic condition 

of the Coosa population, if it remains 

extant in the future; (2) the low genetic 

diversity of the Black Warrior and 

Cahaba populations; and (3) the lack of 

connectivity between populations. 

Further, while the current condition 

assessment found sufficient effective 

population sizes in the Black Warrior 

and the Cahaba populations, the amount 

of habitat disturbance and range 

contractions that are projected to occur 

would likely reduce the effective 

population sizes and genetic diversity of 

these two populations. For these 

reasons, the overall projected 

representation for the coal darter under 

all future scenarios is low. From our 

future scenario assessment, we find that 

the coal darter will be at risk of 

extinction, and therefore is likely to 

become endangered, within the 

foreseeable future (i.e., within the next 

30 years) throughout all of its range. 

Based on projected future threats, the 

coal darter will not have sufficient 

resiliency, redundancy, and 

representation to support species’ 

viability. Overall, the future threats are 

projected to increase in magnitude and 

severity such that the coal darter is at 

risk of extinction throughout all of its 

range. Thus, after assessing the best 

available information, we conclude that 

the coal darter is likely to become in 

danger of extinction within the 

foreseeable future throughout all of its 

range. 


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Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so within the 

foreseeable future throughout all or a 

significant portion of its range. The 

court in Center for Biological Diversity 

v. Everson, 435 F. Supp. 3d 69 (D.D.C. 

2020) (Everson), vacated the provision 

of the Final Policy on Interpretation of 

the Phrase ‘‘Significant Portion of Its 

Range’’ in the Endangered Species Act’s 

Definitions of ‘‘Endangered Species’’ 

and ‘‘Threatened Species’’ (hereafter 

‘‘Final Policy’’; 79 FR 37578, July 1, 

2014) that provided if the Service 

determines that a species is threatened 

throughout all of its range, the Service 

will not analyze whether the species is 

endangered in a significant portion of its 

range. 

Therefore, we proceed to evaluating 

whether the species is endangered in a 

significant portion of its range—that is, 

whether there is any portion of the 

species’ range for which both (1) the 

portion is significant; and (2) the species 

is in danger of extinction in that 

portion. Depending on the case, it might 

be more efficient for us to address the 

‘‘significance’’ question or the ‘‘status’’ 

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Everson, we now consider whether there 

are any significant portions of the 

species’ range where the species is in 

danger of extinction now (i.e., 

endangered). In undertaking this 

analysis for coal darter, we choose to 

address the status question first—we 

consider information pertaining to the 

geographic distribution of both the 

species and the threats that the species 

faces to identify portions of the range 

where the species may be endangered. 

We evaluated the range of the coal 

darter to determine if the species is in 

danger of extinction now in any portion 

of its range. The range of a species can 

theoretically be divided into portions in 

an infinite number of ways. We focused 

our analysis on portions of the species’ 

range that may meet the definition of an 

endangered species. For the coal darter, 

we considered whether the threats or 

their effects on the species are greater in 

any biologically meaningful portion of 

the species’ range than in other portions 

such that the species is in danger of 

extinction now in that portion. 

The statutory difference between an 

endangered species and a threatened 

species is the timeframe in which the 

species becomes in danger of extinction; 

an endangered species is in danger of 

extinction now while a threatened 

species is not in danger of extinction 

now but is likely to become so within 

the foreseeable future. Thus, we 

considered the time horizon for the 

threats that are driving the coal darter to 

warrant listing as a threatened species 

throughout all of its range. We then 

considered whether these threats or 

their effects are occurring in any portion 

of the species’ range such that the 

species is in danger of extinction now 

in that portion of its range. We 

examined the following threats: habitat 

degradation or loss stemming from 

hydrologic alteration by impoundments, 

including dams and other barriers; 

habitat degradation or loss stemming 

from urban development or change in 

land cover, including increased density 

of residential and commercial 

infrastructure; resource extraction, 

including mining and timber operations; 

agriculture, including poultry farming; 

and diminished water quality from 

point and nonpoint source chemical 

contamination and siltation, including 

cumulative effects. 

We identified that the Coosa portion 

of the species’ range is experiencing a 

concentration of the following threat at 

a biologically meaningful scale: habitat 

destruction and degradation from land 

uses and impoundments resulting in 

poor water quality (Factor A). Currently, 

the Coosa population unit has low 

resiliency, with only two HUC 12 

watersheds currently occupied: Lower 

Hatchet Creek and Lower Weogufka 

Creek. This population unit has 

experienced the greatest range reduction 

(a loss of 90 percent of its historical 

range) of the three coal darter 

populations, and its low effective 

population size is an order of magnitude 

lower than the other two populations. 

Overall, the Coosa population lacks any 

adaptive potential, and it is likely that 

a single catastrophic event would result 

in the extirpation of the species from 

this portion. Based on this information, 

we conclude that the impacts are having 

a biologically meaningful effect on the 

Coosa population. Therefore, the best 

scientific and commercial information 

indicates that the Coosa population may 

have a different status than the other 

two populations in the species’ range. 

We then proceeded to consider 

whether this portion of the range (i.e., 

the Coosa population) is significant. The 

Service’s most recent definition of 

‘‘significant’’ within agency policy 

guidance has been invalidated by court 

order (see Desert Survivors v. U.S. 

Department of the Interior, 321 F. Supp. 

3d 1011, 1070–74 (N.D. Cal. 2018)). In 

undertaking this analysis for the coal 

darter, we considered whether the 

Coosa population portion of the species’ 

range may be significant. Therefore, for 

the purposes of this analysis, when 

considering whether this portion is 

significant, we considered whether the 

portion may (1) occur in a unique 

habitat or ecoregion for the species; (2) 

contain high-quality or high-value 

habitat relative to the remaining 

portions of the range, for the species’ 

continued viability in light of the 

existing threats; (3) contain habitat that 

is essential to a specific life-history 

function for the species and that is not 

found in the other portions (for 

example, the principal breeding ground 

for the species); or (4) contain a large 

geographic portion of the suitable 

habitat relative to the remaining 

portions of the range for the species. 

Currently, the Coosa population 

represents a small portion (less than 5 

percent based on current occurrences 

and occupied stream reaches) of the coal 

darter’s range. In addition, this portion 

does not have any areas of habitat that 

are unique or that contain high-quality 

or high-value habitat relative to the 

remaining portions of the range. The 

Coosa population also does not contain 

habitat that is essential to a specific lifehistory function. Overall, we found no 

information that would indicate that the 

Coosa population constitutes a portion 

of the range that may be significant in 

terms of its geographic portion of 

suitable habitat, or that it is significant 

in terms of high-quality habitat or 

otherwise important for the species’ life 

history. 

The best scientific and commercial 

data available indicate that no portion of 

the species’ range provides a basis for 

determining that the species is in danger 

of extinction in a significant portion of 

its range, and we determine that the 

species is likely to become in danger of 

extinction within the foreseeable future 

throughout all of its range. This does not 

conflict with the courts’ holdings in 

Desert Survivors v. U.S. Department of 

the Interior, 321 F. Supp. 3d 1011, 

1070–74 (N.D. Cal. 2018) and Center for 

Biological Diversity v. Jewell, 248 F. 

Supp. 3d 946, 959 (D. Ariz. 2017) 

because, in reaching this conclusion, we 

did not apply the aspects of the Final 

Policy, including the definition of 

‘‘significant,’’ that those court decisions 

held to be invalid. 

Determination of Status 

Our review of the best available 

scientific and commercial information 


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indicates that the coal darter meets the 

Act’s definition of a threatened species. 

Therefore, we propose to list the coal 

darter as a threatened species in 

accordance with sections 3(20) and 

4(a)(1) of the Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition as a listed species, 

planning and implementation of 

recovery actions, requirements for 

Federal protection, and prohibitions 

against certain practices. Recognition 

through listing results in public 

awareness, and conservation by Federal, 

State, Tribal, and local agencies, private 

organizations, and individuals. The Act 

encourages cooperation with the States 

and other countries and calls for 

recovery actions to be carried out for 

listed species. The protection required 

by Federal agencies, including the 

Service, and the prohibitions against 

certain activities are discussed, in part, 

below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Section 4(f) of the 

Act calls for the Service to develop and 

implement recovery plans for the 

conservation of endangered and 

threatened species. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

The recovery planning process begins 

with development of a recovery outline 

made available to the public soon after 

a final listing determination. The 

recovery outline guides the immediate 

implementation of urgent recovery 

actions while a recovery plan is being 

developed. Recovery teams (composed 

of species experts, Federal and State 

agencies, nongovernmental 

organizations, and stakeholders) may be 

established to develop and implement 

recovery plans. The recovery planning 

process involves the identification of 

actions that are necessary to halt and 

reverse the species’ decline by 

addressing the threats to its survival and 

recovery. The recovery plan identifies 

recovery criteria for review of when a 

species may be ready for reclassification 

from endangered to threatened 

(‘‘downlisting’’) or removal from 

protected status (‘‘delisting’’), and 

methods for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. Revisions of the plan 

may be done to address continuing or 

new threats to the species, as new 

substantive information becomes 

available. The recovery outline, draft 

recovery plan, final recovery plan, and 

any revisions will be available on our 

website as they are completed (https:// 

www.fws.gov/program/endangeredspecies), or from our Alabama 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, States, Tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their ranges may occur 

primarily or solely on non-Federal 

lands. To achieve recovery of these 

species requires cooperative 

conservation efforts on private, State, 

and Tribal lands. 

If this species is listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost-share 

grants for non-Federal landowners, the 

academic community, and 

nongovernmental organizations. In 

addition, pursuant to section 6 of the 

Act, the State of Alabama would be 

eligible for Federal funds to implement 

management actions that promote the 

protection or recovery of the coal darter. 

Information on our grant programs that 

are available to aid species recovery can 

be found at: https://www.fws.gov/ 

service/financial-assistance. 

Although the coal darter is only 

proposed for listing under the Act at 

this time, please let us know if you are 

interested in participating in recovery 

efforts for this species. Additionally, we 

invite you to submit any new 

information on this species whenever it 

becomes available and any information 

you may have for recovery planning 

purposes (see FOR FURTHER INFORMATION

CONTACT). 

Section 7 of the Act is titled, 

‘‘Interagency Cooperation,’’ and it 

mandates all Federal action agencies to 

use their existing authorities to further 

the conservation purposes of the Act 

and to ensure that their actions are not 

likely to jeopardize the continued 

existence of listed species or adversely 

modify critical habitat. Regulations 

implementing section 7 are codified at 

50 CFR part 402. 

Section 7(a)(2) states that each Federal 

action agency shall, in consultation with 

the Secretary, ensure that any action 

they authorize, fund, or carry out is not 

likely to jeopardize the continued 

existence of a listed species or result in 

the destruction or adverse modification 

of designated critical habitat. Each 

Federal agency shall review its action at 

the earliest possible time to determine 

whether it may affect listed species or 

critical habitat. If a determination is 

made that the action may affect listed 

species or critical habitat, formal 

consultation is required (see 50 CFR 

402.14(a)), unless the Service concurs in 

writing that the action is not likely to 

adversely affect listed species or critical 

habitat. At the end of a formal 

consultation, the Service issues a 

biological opinion, containing its 

determination of whether the Federal 

action is likely to result in jeopardy or 

adverse modification. 

In contrast, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any action which is 

likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

critical habitat proposed to be 

designated for such species. Although 

the conference procedures are required 

only when an action is likely to result 

in jeopardy or adverse modification, 

action agencies may voluntarily confer 

with the Service on actions that may 

affect species proposed for listing or 

critical habitat proposed to be 

designated. In the event that the subject 

species is listed or the relevant critical 

habitat is designated, a conference 

opinion may be adopted as a biological 

opinion and serve as compliance with 

section 7(a)(2) of the Act. 

Examples of discretionary actions for 

the coal darter that may be subject to 

conference and consultation procedures 

under section 7 of the Act are land 

management or other landscape-altering 

activities on Federal lands administered 

by the U.S. Department of Agriculture’s 

U.S. Forest Service or Natural Resources 

Conservation Service, the U.S. 

Geological Survey, and the U.S. Army 

Corps of Engineers, as well as actions on 

State, Tribal, local, or private lands that 

require a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the CWA 

or a permit from the Service under 

section 10 of the Act) or that involve 

some other Federal action (such as 

funding from the Federal Highway 

Administration, Federal Aviation 


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Administration, or Federal Emergency 

Management Agency). Federal actions 

not affecting listed species or critical 

habitat—and actions on State, Tribal, 

local, or private lands that are not 

funded, authorized, or carried out by a 

Federal agency—do not require section 

7 consultation. Federal agencies should 

coordinate with the local Service Field 

Office (see FOR FURTHER INFORMATION

CONTACT) with any specific questions on 

section 7 consultation and conference 

requirements. 

It is the policy of the Service, as 

published in the Federal Register on 

July 1, 1994 (59 FR 34272), to identify 

to the extent known at the time a 

species is listed, specific activities that 

will not be considered likely to result in 

violation of section 9 of the Act. To the 

extent possible, activities that will be 

considered likely to result in violation 

will also be identified in as specific a 

manner as possible. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of the species proposed for 

listing. Although most of the 

prohibitions in section 9 of the Act 

apply to endangered species, sections 

9(a)(1)(G) and 9(a)(2)(E) of the Act 

prohibit the violation of any regulation, 

including a rule issued under section 

4(d) of the Act pertaining to any 

threatened species of fish or wildlife, or 

threatened species of plant, 

respectively. Section 4(d) of the Act 

directs the Secretary to promulgate 

protective regulations that are necessary 

and advisable for the conservation of 

threatened species. As a result, we 

interpret our policy to mean that, when 

we list a species as a threatened species, 

to the extent possible, we identify 

activities that will or will not be 

considered likely to result in violation 

of the protective regulations under 

section 4(d) for that species. 

At this time, we are unable to identify 

specific activities that will or will not be 

considered likely to result in violation 

of section 9 of the Act beyond what is 

already clear from the descriptions of 

prohibitions and exceptions we would 

establish by protective regulation under 

section 4(d) of the Act (see Provisions of 

the Proposed 4(d) Rule, below). 

Questions regarding whether specific 

activities would constitute violation of 

section 9 of the Act should be directed 

to the Alabama Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

II. Proposed Rule Issued Under Section 

4(d) of the Act 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as she deems necessary and 

advisable to provide for the 

conservation of species listed as 

threatened species. The U.S. Supreme 

Court has noted that statutory language 

similar to the language in section 4(d) of 

the Act authorizing the Secretary to take 

action that she ‘‘deems necessary and 

advisable’’ affords a large degree of 

deference to the agency (see Webster v. 

Doe, 486 U.S. 592, 600 (1988)). 

Conservation is defined in the Act to 

mean the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Additionally, 

the second sentence of section 4(d) of 

the Act states that the Secretary may by 

regulation prohibit with respect to any 

threatened species any act prohibited 

under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2), in the case 

of plants. Thus, the combination of the 

two sentences of section 4(d) provides 

the Secretary with wide latitude of 

discretion to select and promulgate 

appropriate regulations tailored to the 

specific conservation needs of the 

threatened species. The second sentence 

grants particularly broad discretion to 

the Service when adopting one or more 

of the prohibitions under section 9. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld, as a valid exercise of agency 

authority, rules developed under section 

4(d) that included limited prohibitions 

against takings (see Alsea Valley 

Alliance v. Lautenbacher, 2007 WL 

2344927 (D. Or. 2007); Washington 

Environmental Council v. National 

Marine Fisheries Service, 2002 WL 

511479 (W.D. Wash. 2002)). Courts have 

also upheld 4(d) rules that do not 

address all of the threats a species faces 

(see State of Louisiana v. Verity, 853 

F.2d 322 (5th Cir. 1988)). As noted in 

the legislative history when the Act was 

initially enacted, ‘‘once an animal is on 

the threatened list, the Secretary has an 

almost infinite number of options 

available to [her] with regard to the 

permitted activities for those species. 

[She] may, for example, permit taking, 

but not importation of such species, or 

[she] may choose to forbid both taking 

and importation but allow the 

transportation of such species’’ (H.R. 

Rep. No. 412, 93rd Cong., 1st Sess. 

1973). 

The provisions of this proposed 4(d) 

rule would promote conservation of the 

coal darter by encouraging management 

of the landscape in ways that meet both 

watershed and riparian management 

purposes and facilitate the conservation 

of the species. The provisions of this 

proposed 4(d) rule are one of many tools 

that we would use to promote the 

conservation of the coal darter. This 

proposed 4(d) rule would apply only if 

and when we make final the listing of 

the coal darter as a threatened species. 

As mentioned previously in Available 

Conservation Measures, section 7(a)(2) 

of the Act requires Federal agencies, 

including the Service, to ensure that any 

action they authorize, fund, or carry out 

is not likely to jeopardize the continued 

existence of any endangered species or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat of such 

species. In addition, even before the 

listing of any species or the designation 

of its critical habitat is finalized, section 

7(a)(4) of the Act requires Federal 

agencies to confer with the Service on 

any agency action which is likely to 

jeopardize the continued existence of 

any species proposed to be listed under 

the Act or result in the destruction or 

adverse modification of critical habitat 

proposed to be designated for such 

species. 

These requirements are the same for 

a threatened species with a speciesspecific 4(d) rule. For example, as with 

an endangered species, if a Federal 

agency determines that an action is ‘‘not 

likely to adversely affect’’ a threatened 

species, it will require the Service’s 

written concurrence (see 50 CFR 

402.13(c)). Similarly, if a Federal agency 

determinates that an action is ‘‘likely to 

adversely affect’’ a threatened species, 

the action will require formal 

consultation with the Service and the 

formulation of a biological opinion (see 

50 CFR 402.14(a)). 

Provisions of the Proposed 4(d) Rule 

Exercising the Secretary’s authority 

under section 4(d) of the Act, we have 

developed a proposed rule that is 

designed to address the coal darter’s 

conservation needs. As discussed 

previously under Summary of Biological 

Status and Threats, we have concluded 

that the darter is likely to become in 

danger of extinction within the 

foreseeable future primarily due to 

habitat loss or degradation from the 

following activities or conditions: 

hydrologic alteration by impoundments, 

including dams and other barriers; 


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agriculture (poultry farming); urban 

development or change in land cover, 

including increased density of 

residential and commercial 

infrastructure; resource extraction, 

including mining and silviculture 

operations that do not follow Stateapproved BMPs; diminished water 

quality from point and nonpoint source 

chemical contamination and 

sedimentation; and climate change. 

Section 4(d) requires the Secretary to 

issue such regulations as she deems 

necessary and advisable to provide for 

the conservation of each threatened 

species and authorizes the Secretary to 

include among those protective 

regulations any of the prohibitions that 

section 9(a)(1) of the Act prescribes for 

endangered species. We find that, if 

finalized, the protections, prohibitions, 

and exceptions in this proposed 4(d) 

rule as a whole satisfy the requirement 

in section 4(d) of the Act to issue 

regulations deemed necessary and 

advisable to provide for the 

conservation of the coal darter. 

The protective regulations we are 

proposing for the coal darter incorporate 

prohibitions from section 9(a)(1) of the 

Act to address the threats to the species. 

Section 9(a)(1) prohibits the following 

activities for endangered wildlife: 

importing or exporting; take; possession 

and other acts with unlawfully taken 

specimens; delivering, receiving, 

carrying, transporting, or shipping in 

interstate or foreign commerce in the 

course of commercial activity; or selling 

or offering for sale in interstate or 

foreign commerce. This protective 

regulation includes all of these 

prohibitions because the coal darter is at 

risk of extinction within the foreseeable 

future and putting these prohibitions in 

place would help to preserve the 

species’ remaining populations and 

decrease synergistic, negative effects 

from other ongoing or future threats. 

In particular, this proposed 4(d) rule 

would provide for the conservation of 

the coal darter by prohibiting the 

following activities, unless they fall 

within specific exceptions or are 

otherwise authorized or permitted: 

import or export; take; possession and 

other acts with unlawfully taken 

specimens; delivery, receipt, carriage, 

transport, or shipment in interstate or 

foreign commerce in the course of 

commercial activity; and sale or offer for 

sale in interstate or foreign commerce. 

We also include several exceptions to 

these prohibitions, which, along with 

the prohibitions, are set forth below. 

Under the Act, ‘‘take’’ means to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

to attempt to engage in any such 

conduct. Some of these provisions have 

been further defined in regulations at 50 

CFR 17.3. Take can result knowingly or 

otherwise, by direct and indirect 

impacts, intentionally or incidentally. 

Regulating take would help preserve the 

species’ remaining populations and 

slow their rate of decline. Therefore, we 

propose to prohibit take of the coal 

darter, except for take resulting from 

those actions and activities specifically 

excepted by the 4(d) rule. Exceptions to 

the prohibition on take would include 

all of the general exceptions to the 

prohibition on take of endangered 

wildlife, as set forth in 50 CFR 17.21, 

and additional exceptions, as described 

below. 

The proposed 4(d) rule would also 

provide for the conservation of the 

species by allowing exceptions that 

incentivize conservation actions or that, 

while they may have some minimal 

level of take of the coal darter, are not 

expected to rise to the level that would 

have a negative impact (i.e., would have 

only de minimis impacts) on the 

species’ conservation. The proposed 

exceptions to the prohibitions include: 

take incidental to any otherwise lawful 

activity caused by channel restoration; 

streambank restoration; habitat 

improvement activities; and silviculture 

and forestry activities that follow best 

management practices (described 

below). These are expected to have 

negligible impacts to the coal darter and 

its habitat. 

Channel Restoration—Channel 

restoration is used as a technique to 

restore degraded, physically unstable 

streams back to natural, physically 

stable, ecologically functioning streams. 

When done correctly, these projects 

reduce, ameliorate, or fix unnatural 

erosion, head cutting, and/or 

sedimentation. Thus, channel 

restoration projects result in 

geomorphically stable stream channels 

that maintain the appropriate lateral 

dimensions, longitudinal profiles, and 

sinuosity patterns over time without an 

aggrading or degrading bed elevation 

and include stable riffle-run-pool 

complexes that consist of silt-free 

gravel, coarse sand, cobble, boulders, 

woody structure, and river weed 

(Podostemum ceratophyllum). This 

provision of the proposed 4(d) rule for 

channel restoration would promote 

conservation of the coal darter by 

excepting incidental take resulting from 

activities that would improve channel 

conditions and restore degraded, 

physically unstable streams or stream 

segments. We anticipate these activities 

will advance ecological conditions 

within a watershed to a more natural 

state that would benefit the coal darter. 

Streambank Stabilization— 

Streambank stabilization is used as a 

habitat restoration technique to restore 

degraded and eroded streambanks back 

to natively vegetated, stable 

streambanks. When done correctly, 

these projects reduce bank erosion and 

instream sedimentation, resulting in 

improved habitat conditions for aquatic 

species. Therefore, we would allow 

streambanks to be stabilized using the 

following bioengineering methods: 

native live stakes (live, vegetative 

cuttings inserted or tamped into the 

ground in a manner that allows the 

stake to take root and grow), native live 

fascines (live branch cuttings, usually 

willows, bound together into long, cigarshaped bundles), planting of bare-root 

seedlings or native brush layering 

(cuttings or branches of easily rooted 

tree species layered between successive 

lifts of soil fill). All methods should use 

plant species native to the region where 

the project is being conducted. These 

methods would not include the sole use 

of quarried rock (riprap) or the use of 

rock baskets or gabion structures, but 

quarried rock (riprap), rock baskets, or 

gabion structures could be used in 

conjunction with the allowed 

bioengineering methods described 

above. This provision of the proposed 

4(d) rule would promote conservation of 

the coal darter by excepting from the 

prohibition on incidental take those 

streambank stabilization activities that 

would improve habitat conditions by 

reducing bank erosion and instream 

sedimentation. 

Habitat Improvement Activities— 

Activities that improve watershed, 

riparian, or habitat conditions within 

the range of the coal darter would 

provide for the conservation of the 

species. Activities carried out under the 

Working Lands for Wildlife program of 

the Natural Resources Conservation 

Service, U.S. Department of Agriculture, 

or similar projects, which may include 

projects funded by the Service’s 

Partners for Fish and Wildlife Program 

or the EPA’s 319 grant program, would 

benefit the species if they do not alter 

habitats known to be used by the 

species beyond its tolerances and are 

implemented with a primary objective 

of improving environmental conditions 

to support the aquatic biodiversity of 

flowing water habitats. This provision of 

the proposed 4(d) rule would promote 

conservation of the coal darter by 

excepting from the prohibition on 

incidental take those activities 

described above that improve 

conditions for the species and that 

would likely increase resiliency in the 


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Black Warrior, Cahaba, and Coosa 

Rivers resiliency units. 

Silviculture and Forestry Management 

Activities—Silviculture and forest 

management activities that use Stateapproved BMPs to protect water and 

sediment quality and stream and 

riparian habitat would provide for the 

conservation of the coal darter. Best 

management practices would have to be 

designed to reduce sedimentation, 

erosion, and bank destruction, thereby 

protecting instream habitat for the 

species. We recognize that silvicultural 

operations are widely implemented in 

accordance with State-approved BMPs 

(as reviewed by Cristan et al. 2018, 

entire), and the adherence to these 

BMPs broadly protects water quality, 

particularly related to sedimentation (as 

reviewed by Cristan et al. 2016, entire; 

Warrington et al. 2017, entire; Schilling 

et al. 2021, entire). This provision of the 

4(d) rule would promote conservation of 

the coal darter by excepting from the 

prohibition on incidental take those 

silviculture and forest management 

activities that use State-approved BMPs 

because this exception would allow 

these activities to continue while 

protecting the coal darter’s habitat. 

Despite these prohibitions regarding 

threatened species, we may under 

certain circumstances issue permits to 

carry out one or more otherwiseprohibited activities, including those 

described above. The regulations that 

govern permits for threatened wildlife 

state that the Director may issue a 

permit authorizing any activity 

otherwise prohibited with regard to 

threatened species. These include 

permits issued for the following 

purposes: for scientific purposes, to 

enhance propagation or survival, for 

economic hardship, for zoological 

exhibition, for educational purposes, for 

incidental taking, or for special 

purposes consistent with the purposes 

of the Act (50 CFR 17.32). The statute 

also contains certain exemptions from 

the prohibitions, which are found in 

sections 9 and 10 of the Act. 

We recognize the special and unique 

relationship with our State natural 

resource agency partners in contributing 

to conservation of listed species. State 

agencies often possess scientific data 

and valuable expertise on the status and 

distribution of endangered, threatened, 

and candidate species of wildlife and 

plants. State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 

position to assist us in implementing all 

aspects of the Act. In this regard, section 

6 of the Act provides that we must 

cooperate to the maximum extent 

practicable with the states in carrying 

out programs authorized by the Act. 

Therefore, any qualified employee or 

agent of a State conservation agency that 

is a party to a cooperative agreement 

with us in accordance with section 6(c) 

of the Act, who is designated by his or 

her agency for such purposes, would be 

able to conduct activities designed to 

conserve coal darter that may result in 

otherwise prohibited take without 

additional authorization. 

Nothing in this proposed 4(d) rule 

would change in any way the recovery 

planning provisions of section 4(f) of the 

Act, the consultation requirements 

under section 7 of the Act, or the ability 

of the Service to enter into conservation 

partnerships for the management and 

protection of the coal darter. However, 

interagency cooperation may be further 

streamlined through planned 

programmatic consultations for the 

species between Federal agencies and 

the Service, where appropriate. We ask 

the public, particularly State agencies 

and other interested stakeholders that 

may be affected by the proposed 4(d) 

rule, to provide comments and 

suggestions regarding additional 

guidance and methods that the Service 

could provide or use, respectively, to 

streamline the implementation of this 

proposed 4(d) rule (see Information 

Requested, above). 

III. Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

We have found critical habitat to be 

prudent and determinable for the coal 

darter and have developed a proposed 

critical habitat rule for this species. On 

October 25, 2023, we were informed 

that the Office of Information and 

Regulatory Affairs (OIRA) in the Office 

of Management and Budget (OMB) 

determined that our proposed critical 

habitat rule is significant under 

Executive Order 12866. Therefore, we 

will publish a proposed critical habitat 

rule for the coal darter following 

interagency review of the proposed 

critical habitat rule. 

Required Determinations 

Clarity of the Rule 

We are required by E.O.s 12866 and 

12988 and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule we publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

Regulations adopted pursuant to 

section 4(a) of the Act are exempt from 

the National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.) and do 

not require an environmental analysis 

under NEPA. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

includes listing, delisting, and 

reclassification rules, as well as critical 

habitat designations and speciesspecific protective regulations 

promulgated concurrently with a 

decision to list or reclassify a species as 

threatened. The courts have upheld this 

position (e.g., Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995) 

(critical habitat); Center for Biological 

Diversity v. U.S. Fish and Wildlife 

Service, 2005 WL 2000928 (N.D. Cal. 

Aug. 19, 2005) (concurrent 4(d) rule)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), E.O. 13175 

(Consultation and Coordination with 

Indian Tribal Governments), and the 

Department of the Interior’s manual at 


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88358 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Proposed Rules 

512 DM 2, we readily acknowledge our 

responsibility to communicate 

meaningfully with federally recognized 

Tribes on a government-to-government 

basis. In accordance with Secretary’s 

Order 3206 of June 5, 1997 (American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act), we readily 

acknowledge our responsibilities to 

work directly with Tribes in developing 

programs for healthy ecosystems, to 

acknowledge that Tribal lands are not 

subject to the same controls as Federal 

public lands, to remain sensitive to 

Indian culture, and to make information 

available to Tribes. We have determined 

that no Tribal lands fall within the 

occupied range of the coal darter, so no 

Tribes would be affected by the listing 

of the species. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the Alabama 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 

Assessment Team and the Alabama 

Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Plants, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. In § 17.11, amend paragraph (h) by 

adding an entry for ‘‘Darter, coal’’ to the 

List of Endangered and Threatened 

Wildlife in alphabetical order under 

FISHES to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

Fishes 

*******

Darter, coal .......... Percina 

brevicauda.

Wherever found .. T [Federal Register citation when published as a final rule]; 50 CFR 

17.44(ii).4d

* * * * * * * 

■ 3. Amend § 17.44 by adding 

paragraph (ii) to read as follows: 

§ 17.44 Special rules—fishes. 

* * * * * 

(ii) Coal darter (Percina brevicauda). 

(1) Prohibitions. The following 

prohibitions that apply to endangered 

wildlife also apply to the coal darter. 

Except as provided under paragraph 

(ii)(2) of this section and §§ 17.4 and 

17.5, it is unlawful for any person 

subject to the jurisdiction of the United 

States to commit, to attempt to commit, 

to solicit another to commit, or cause to 

be committed, any of the following acts 

in regard to this species: 

(i) Import or export, as set forth at 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 

(iii) Possession and other acts with 

unlawfully taken wildlife, as set forth at 

§ 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 17.21(f) for endangered wildlife. 

(2) Exceptions from prohibitions. In 

regard to this species, you may: 

(i) Conduct activities as authorized by 

a permit under § 17.32. 

(ii) Take, as set forth at § 17.21(c)(2) 

through (c)(4) for endangered wildlife. 

(iii) Take, as set forth at § 17.31(b). 

(iv) Possess and engage in other acts 

with unlawfully taken wildlife, as set 

forth at § 17.21(d)(2) for endangered 

wildlife. 

(v) Take incidental to an otherwise 

lawful activity caused by: 

(A) Channel restoration projects that 

create natural, physically stable, 

ecologically functioning streams. These 

projects can be accomplished using a 

variety of methods, but the desired 

outcome is a natural channel with 

geomorphically stable stream channels 

that maintain the appropriate lateral 

dimensions, longitudinal profiles, and 

sinuosity patterns over time without an 

aggrading or degrading bed elevation 

and include stable riffle-run-pool 

complexes that consist of silt-free 

gravel, coarse sand, cobble, boulders, 

woody structure, and river weed 

(Podostemum ceratophyllum). 

(B) Streambank stabilization projects 

that use bioengineering methods to 

replace pre-existing, bare, eroding 

stream banks with natively vegetated, 

stable stream banks, thereby reducing 

bank erosion and instream 

sedimentation, and improving habitat 

conditions for the coal darter. Stream 

banks may be stabilized using native 

live stakes (live, vegetative cuttings 

inserted or tamped into the ground in a 

manner that allows the stake to take root 

and grow), native live fascines (live 

branch cuttings, usually willows, bound 

together into long, cigar-shaped 

bundles), planting of bare-root seedlings 

or native brush layering (cuttings or 

branches of easily rooted tree species 

layered between successive lifts of soil 

fill). Stream banks must not be 

stabilized solely through the use of 

quarried rock (riprap) or the use of rock 

baskets or gabion structures. 

(C) Activities that improve the 

watershed, riparian, or habitat 

conditions for the coal darter within the 

range of the species. Activities carried 

out under the Working Lands for 

Wildlife program of the Natural 

Resources Conservation Service, U.S. 


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Department of Agriculture, or similar 

projects, which may include projects 

funded by the Service’s Partners for Fish 

and Wildlife Program or the 

Environmental Protection Agency’s 319 

grant program, benefit the species if 

they do not alter habitats known to be 

used by the species beyond its 

tolerances and are implemented with a 

primary objective of improving 

environmental conditions to support the 

aquatic biodiversity of flowing water 

habitats. 

(D) Silviculture and forest 

management activities that use Stateapproved best management practices to 

protect water and sediment quality and 

stream and riparian habitat. Best 

management practices must be designed 

to reduce sedimentation, erosion, and 

bank destruction, thereby protecting 

instream habitat for the coal darter. 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2023–27873 Filed 12–20–23; 8:45 am] 

BILLING CODE 4333–15–P 


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